AFR

Judgment Reserved on 12.10.2022

Judgment Delivered on 03.11.2022

Court No. - 3

Case :- FIRST APPEAL No. - 20 of 2007

Appellant :- Smt. Gayatri Mohapatra

Respondent :- Ashit Kumar Panda

Counsel for Appellant :- M.D. Singh Shekhar,R.D.Tiwari

Counsel for Respondent :- K.M. Mishra,A.K. Singh,A.K.Rai,H.R.

Mishra,V.K.Singh

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Rajendra Kumar-IV,J.

(Per: Surya Prakash Kesarwani,J.)

1.Heard Sri M.D. Singh Shekhar, learned Senior Counsel, assisted by

Sri Vaibhav Goswami, learned counsel for the defendant-appellant and Sri

Vishnu Singh, learned counsel for the plaintiff-respondent.

Facts

2.Briefly stated facts of the present case are that defendant –

appellant/wife married with the plaintiff – respondent/husband on

10.06.1990 as per Hindu rites and rituals. Plaintiff – respondent is an

I.P.S. Officer while the defendant – appellant is a Doctor holding

M.B.B.S. Degree. The father of the plaintiff – respondent was in service

of the Steel Authority of India, Raurkela while father of the defendant –

appellant was Additional Director General of Police, Orissa and her

mother has promoted a company known as JBS Capacitors Pvt. Ltd.,

Bhubaneshwar. Initially, the defendant – appellant joined the service in

Health Department, Aligarh, but after three or four months she left it. She

became Director in the aforesaid Company promoted by her mother. Son,

namely, Aparajita Issan Narayan was born on 05.06.1991 from the

wedlock of the plaintiff and the defendant at SCB Medical College,

Cuttack.

3. It appears that dispute between the plaintiff and the defendant arose

even before their son was born which led to various incidents. Ultimately

the plaintiff – respondent filed case No.260 of 2000 (Ashit Kumar Panda

Vs. Smt. Gayatri Devi) under Section 13 of the Hindu Marriage Act,

1955, in the Court of Principal Judge Family Court, Meerut, for divorce.

In the plaint, amongst other allegations; the plaintiff – respondent has

alleged in paras 5, 9, 10, 11, 14, 15, 16, 17, 18 and 19 as under:

“5. AFRCoRurt N.-R3RC3ua Ros Rue-3:-pRlsRnd:-R3RC3d:-pRopRfHl:.':RFp.s

os Ro:-bRS RC3ua Ry3PRkHos RCu':Rurt N.-Ry3PRkHos Rue-3:-RopRfu.s

f.hKd'RwS:3Ro:Ri:SRk,:o-R'-FR'-FRHsR'PJR3Ru-sN:.Ro-'sR-FsRFrjRजि&ससे

urt N.-Rfu.sRV:(u)ARI 3.Ros RHhcRHsR3PKd'RFpRJA:RFrj

9. AFRCoRC3ua Ros RCu':R.sRurt N.-Ros RCu':RopR'PJR3Ru-sN:.Ro-.sRo1RJ-IRHs

CV.:PoR30.12.91 opRJh09sRSsIo-RFli:Ro-3:A:jRmIHo1Re-upt2Rurt N.-Ros

किपता ने सैक्टर-3 -:k-os i:Ros R4:.sRlsRuPI oृ'Ro-:A R4 j

10. AFRCoRC3ua R.sRurt N.-Ros Ruh5Ros R.:lo-bRo1R-6lRS RotoRlsRfu.s

Cu':Ros RDgRu-RH(uMRo-:A RmIHlsRC3ua Rurt N.-Rf43:RkHos Rl:':RCu':

opR7HRH(T“”RlsRopGRH’d.:R.F RV j

11. AFRCoRC3ua Ros RCu':R.sRH.YR1991 os Rnxc-RlsRurt N.-Ros RCu':Ros

खिखलाफ H OT OnGORlsRlsiRIpiRFp.sRos Ro:-bRA’B,sRlhoVlsRo:AlRo-:.sRos

खिलये दबाव बनाया, kHRHlARyHOu ORH OT OnGORSh3.sC-RD Rwo:NRClD:

'r.:'R4sjRmI“Fp.sRopGRHT’'R.Ru:'sRFुyRurt N.-Ros RCu':RI Ros Rxci:BRopG

o:A23:F R.F Ro- R4 j

14. AFRCoRC3ua R.sR3E2R1991 lsRITRurt N.-Ro1R'r.:' RT'F-RyOyHOu O

4 jR'TRoGAू2Ros RVF-:.RC3ua Rurt N.-Ros Ru:HRnA RH-RyoR-:'RIoo-

urt N.-Ru-RVT:3RCVA:RCoRurt N.-RkHsR3:CuHRkHos RCu':Ros RDgRu-RJp9o-

आये, urt N.-R.sRT:lhKLoiRJh M Riso-RC3ua RopRkHos RCu':Ros RD-Ru-RJpNo-

आया।

15. AFRCoRurt N.-RfTRls-,RlsRuhxiHRt्रेनिंनग सेन्टर हापुड़ रोड मेरठ मे तैनात है

CV.:PoR17.12.99 opRC3ua R.sRurt N.-Ros Rlo:.RHsRHl6'RH:l:.R9TiRTs9,

अलमारी , फ्री& , oूi-RnCVRopRt्रoRlsRS-3:o-Rfu.sRH:4RCVR RK64'Rlo:.

Sst-Ror i:NRlsRisRJA , ट्रoRos RH:4RH:l:.RdT3:.sR3Rk'-3:.sRlsRoC3“URJF'l

हैड. o:P6tsCTi, तालेवर सिंसह, स्टैनो नेपाल सिंसह, सी०एल०डी० रा&न सिंसह व वीर

सिंसह फोलोवर ट्रoRos RH:4RlsRJAsR4sR3Ru9FH Rf.“'RfS3:iRuh5RC3.ARfS3:i

lo:.RHPORyiO-948 .sRC3ua RopRH:l:.Rt्रoRlsRS-'sR3RisRI:'sRFुए देखा है।

16. AFRCoRku-pWRue-K64K'ApRlsRurt N.-Ro:RC3ua Ros RH:4RH:4R-F.:

.:lhlCo.RFrjRurCtN.-R3RC3ua Ros RH:4R-F.sRu-RCoH RS RHlARopGRS

VD2t.:RDCt'RFpRHo' RFrj

17. AFRCoRC3ua R.sRurt N.-R'4:RkHos Rl:':RCu':RopRu-sN:.Ry3PRTsGX'

o-.sRo1RC.A'RHsRCV.:PoR27.03.2000 opRlCFi:R4:.s, HV-Ric.YRlsRyo

रिरपोट. क्राईम नं० 17/2000 पर अ०धारा 498ए, 323, 506 आई०पी०सी० व ¾

VFsIRyvtRVI2Ro-:A RmIHlsRC3ua R.sRurt N.-Ry3PRl:':RCu':Ru-RA’B,sRTsThC.A:V

2

n-puRiJ:AsjR7HR'4:o[4'Re-upt2RlsRC3ua R.sRurt N.-Ru-Rde-5RF .':Ro:

n-puRS RiJ:A:RIpRCoRH324:RJi'RTsThC.A:VRy3PRoupiRoK\u'RFrjRC3ua Ro1

7HRe-upt2RHsRurCtN.-Ry3PRkHos Rue-3:-Ro1RHl:IRlsRTFुत ही बेइज्जती हुयी है एवं

urt N.-R'4:RkHos Rue-3:-RopRl:.mHoRnD:'RS RuFुचा है। इस घटना से

urt N.-RopR7'.:Ro]RFुnRCoRfTRurt N.-Ro:RC3ua Ros RH:4R-F.:Ro'G

H(S3R.F RFrRH-RC3ua Ro:RAFRoृ)ARurt N.-Ros RwK'Rl:.mHoRZूरता पूण. है।

18. AFRCoRC3ua Rop Rurt N.-R'4:RkHos Rue-3:-Ros RC3I^RA’B, Re-upt2

xic:o-RSC3_ARlsRurt N.-Ros RV:(u)ARI 3.Ro1RyoRl:5RnN:RopRS RHl:`

o-RCVA:RFrjRfTRurt N.-Ry3PRC3ua Ro:RyoRH:4R-Fo-RV:(u)ARI 3.RA:u.

o-.:R.:lhlCo.RFrRf'aRku-pWRurt N.Rw6'h'Ro-.sRo1Rn3LAo':RurV:RFुयी

है।

19. AFRCoR3:VRo:Ro:-bRCV.:PoR10.06.90 lsRC3ua Ros RH:4RC33:FRFp.sRkHos

उपरान्त CV.:Po R13.12.99 lsRls-,RHsRurt N.-Ros RC.3:HRHsRHl6'RD-Ro:

H:l:.RisRI:.:Ry3PRkHos RT:VRCV.:PoR27.03.2000 opRC3ua Ros Rb:-:Rurt N.-

u-Rde-5RF .':R3Rk)u 9.Ros RA’,sRn-puRiJ:o-RA’, Re-upt2RVI2Ro-:GRy3P

urt N.-Ry3PRC3ua Ro:Rls-,RNF-RlsRfK“'lRHlARu-RyoRH:4RC.3:HRo-.sRos

o:-bRl:.. AR“A:A:iARos Ras5:K”o:-RlcRn':RFrjRl:.. AR“A:A:iARopRkW

3:VRopRHh..sRy3PRC.6':-bRo-.sRo:Ru’b2'A:RfK”o:-RFrj"

4.The defendant – appellant filed written statement in which she

denied allegations. The plaintiff – respondent filed examination in chief.

In his examination-in-chief he affirmed the plaint version. He produced

himself in evidence for cross – examination and was cross examined by

the defendant – appellant. The plaintiff – respondent also produced in

evidence Sri Golak Bihari Panda (PW 2), who is his father. In his

evidence on the point of cruelty the PW 2, has stated as under :-

“8. AFRCoRlrRNu4u’32oRo4.Ro-':RFूBRCoRkWRCV.:Po- 12.06.1990 HsRiso-

CV.:Po- 14.06.1990 o1R' .RCV.Ro1Rf3K”RlsRD l' RJ:A5 R.sRf.sopRT:-

Nu4o':2Ry3PRkHos Rue-3:-I.RopRAFR':.:RCVA:RCoR'h(F:-sRD-Ro:R6trb92

बहु'Rc-:TRFrRH-RnN 'Roुl:-Ro:R3s'.RS RTFु'RolRFrR7'.sRHsRoF RfK”o

'pRFlRfu.sRol2d:e-AdRopRT:PtRVs'sRFrjReH RK64K'RlcRkHo:RHHh-:iRlsR-F.:

CoH RS RF:iRlsRH(S3R.F RFrReHsR':.sRHh.o-RNu4o':2Ry3PRkHo1Ru). Ry3P

kHos Ruh5RopRTN:RF Rl:.mHoRo]RuFुBd:RNu4o':2Ros RuNpHRlsRS RNu4o':2

o1RJC3Rf)A“'Rc-:TRFpRJA j

9. AFRCoRlrRNu4u’32oRTA:.Ro-':RFूBRCoRNu4o':2Ro1Ruh5RT”’RD l' RJ:A5

ylOT OT OyHOR9:vt-RFrRH-RkHos RCu':Rk9 H:RuhxiHRos RHs3:C.38f

yHO9 OI Ou O R Frj R D l' R J:A5 R fu. R l:': R I R o1 R o(u.

IsOT OyHOos u mHtsHRw:G3stRxiCltsNRSh3.sC-RK64'Ro(u. R9:A-svt-RS RFrj

H-RD l' RJ:A5 RkWRo(u. Ros RHl6'Ro:lo:IRo1RVscS:iRo-' RFrRkW

o(u. Ro(gAूt-Ros Ru:t2HRT.:.sRo:Ro:A2Ro-' RFrjRC33:FRos Ruh:'RD l'

J:A5 RfK”o'-RHlARfu.sRl:Aos RlsRF R-F RFrj

3

10. AFRCoRlrRNu4u’32oRTA:.Ro-':RFूRCoR-s6up09s“tRos RfK”o'-RHlA

fu.sRl:Aos RlsR-F.sRHsRy3PRZू-':Ru’b2RiA3F:-Ros Ro:-bRNu4o':2Ro:Ruh5

V:(u)ARHhcRHsR3PKd'RFpRJA:RFrRH-R3FRTNsRF Rl:.mHoRo]pRlsRfu.:RI 3.

गु&ार रहा है।

11. AFRCoRlrRNu4u’32oRTA:.Ro-':RFूRCoR-s6up“9s0tRD l' RJ:A5 RopRfu.s

l:Aos RlsRF R-F'sRFुyRyoRuh5Rfu-:mI'RGN:.R.:-:AbRo:RI“lRCV.:Po-

05.06.1991 opRFुnR4:RH-RI“lRHsRiso-RnIR'oRkHRuh5RopRusCtHu-Ro1

7jJ:Ros RC3I^R-s6up09s“tR.sRfu.sRl:Aos RlsRF R-c:RFुnRFrRH-RkHo1RuT:G

xic:GRS R3F RdiR-F RFrR-s6up09s“tR.sRNu4o':2Ry3PRkHo1Ru). RopRnI

'oRfu.sRyoRl:5:Rup'sRo:RlhPFRS RVsc.sR.F RCVA:RFrRmIHo:R7'.:RS:- RVुख

Nu4o':2Ry3PRkHo1Ru). RopRFrRmIHos RNkVpRlsR6u]Ro-.:RH(S3R.F RFrj

12. AFRCoRlrRNu4u’32oRo4.Ro-':RFूBRCoRHl6'RS:-'RlsRCF“Vू &ाचित मे यह

u-(u-:RFrRCoRuh5RA:RuF5Ro:R.:lo-bRy3PRI.sYRHP6o:-RkHos RCu':Ros RDgRls

H(uMRFp':RFrRmIHlsRue-3:-Ros RHS R7]RCl5Ry3PRe-L'sV:-RN:CliRFpo-Rcुशी

l.:'sRFrjRu-“'hR-s6up09s“tRo1RZू-':Ro1R'TRH l:RHl:`RFpRJA RITR-s6up09s“t

.sRNu4o':2Ry3PRkHos Rue-3:-I.pRopR3Jr-RopGRH’d.:RCVAsRNu4o':2Ros RuF5

o:RI.sYRHP6o:-RS Rfu.sRl:Aos RlsRF Rl.:RxiA:jReH RK64K'RlsRNu4o':2

fu.sRuF5Ro:RHP6o:-Ru’b2Ro-.sRy3PRkHopRfu. RJ:PVRlsRxci:o-RkHo1Rl , -

l , RT:'sRHh..sRHsRu’b2IuRHsR3PKd'RFpRJA:R'4:RurCtH.-RnN 'Roुमार &ो उक्त

TlsRo:Rw:oृK'oRCu':RFrR3FR-s6up09s“tRos RkWRZूरता पूण. व्यवहार से किपतृ सुख

व दाम्प्त्य सुख से भी वंचिचत हो गया है।

13. AFRCoRlrRNu4u’32oRTA:.Ro-':RFूBRCoR-s6up09s“tRos RCu':R.sRNu4o':2Rop

u-sN:.Ro-.sRo1R. A'RHsRCV.:PoR30.12.1991 opRJh09sRSsIo-RNu4o':2Ru-

Fli:RS Ro-3:A:R4:RmIHo1Re-upt2RNu4o':2R.sRHsvt-R-3 -:k-os i:Ros R4:.sRls

uPI oृ'Ro-:A R4 jR7Hos RfK'e-WRCVH(T-R1991 lsRF R-s6up09s“tRos RCu':R.s

H OT OnG^Ros RI:.RuFd:.RFp.sRos Ro:-bRNu4o':2RopRA’, Ro:A23:F Rls

BP H:.sRos RxiyRwA:HRCoA:R4:RkHRHlARyHOu OH OT OnGORSh3.sC-RD

wo:NRClD:R'r.:'R4sRmI“Fp.sRopGRHT’'R.Ru:'sRFुAsRNu4o':2Ros RC3I^RopG

o:A23:F R.F Ro1R4 j

14. AFRCoRlrRNu4u’32oRo4.Ro-':RFूBRCoRNu4o':2Ro:Ruh5RnN 'Roुमार &ब

वर्ष. 1999 lsRls-GRlsR'r.:'R4:R'TR3FRJ(S -RIuRHsRlhPFRos Ror “H-RHsRT l:-RFp

JA:R4:R'TR-s6up09s“tRopRkHo1Ru’b2RVscS:iRo-. Rd:CFyR4 Ru-“'h

-s6up09s“tR.sRkHo1RVscS:iRo-.sRos R64:.Ru-RkHHsRiN:GRAJN:RCoA:RH-

D-Ro:RHl6'RD-si’RH:l:.RIrHsR9TiRTs9, अलमारी, फ्री& , oूलर आकिद ट्रoRls

S-3:o-RCV.:PoR17.12.1999 opRfu.sRH:4RCVR RK64'Rlo:.RSst-Ror i:NRls

ले गयी थी ट्रoRlsRH:l:.RS-3:.sRlsRoC3“URJF'lRFr9Ro:“HO, तालेवर सिंसह,

स्टैनो नेपाल सिंसह, सी०एल०डी० रा&न सिंसह व वीर सिंसह फालोवर ट्रoRlsRH:l:.

S-3:o-RCVR RH:4RJAsR4sR7.os RfK'e-WRu9pH Rf.“'RfS3:iRuh5RD RC3.A

अग्रवाल किनवासी एल० 948 N:m R.J-Rls-,RmI.o1RuhxiHRt्रेनिंनग सेण्टर हापुड

-p9Rls-,RNF-Ros Ru:HRu OH OnORo1RVुo:.R4 R.sRS R-s6up09s“tRopRt्रoRls

सामान भरवाते व ले &ाते हुए देखा था।

15. AFRCoRlrRNu4u’32oRo4.Ro-':RFूBRCoR-s6up09s“tR.sRCT.:Ro:-bR'PJR3

u-sN:.Ro-.sR3RTsGX' Ro-.sRo1R. A'RHsRurCtN.-Ry3PRNu4o':2Ry3PRNu4o':2

o1Ru). Ros R.:lRyoRA’, Re-upt2RCV.:Po- 27.03.2000 opRlCFi:R4:.:RHV-

लखनऊ मे अन्तग.त धारा - 498ए०/323/506 आई०पी०सी० व ¾ दहे& एक्ट

o1RVI2Ro-:A R4 RmIHlcR-s6up09s“tR.sRNu4o':2Ry3PRkHos Rue-3:-I.pRu-RA’P,s,

बेबुकिनयाद, n-puRiJ:AsR4sjRkWRe-upt2RlsR-6up09s“tR.sRfu.sRuK'Ros RC3I^

4

de-5F .':Ro:RA’,:Rn-puRS RiJ:A:RIpR-s6up09s“tRo1RZू-':RopR6u]Ro-':

FrjReH RK64K'RlcRusCtN.-R3R-s6up09s“tRo:RH:4RH:'RuK'Ru). Ros RIuRlsR-F.:

सम्भव नही रहा है।"

5.The plaintiff – respondent also filed additional affidavit in evidence

in which he further narrated certain facts in paras 5 and 6 to support

mental cruelty by the defendant – appellant.

6.P.W. 1 and P.W. 2 both were cross examined by the defendant –

appellant on various dates.

7.In evidence, copies of First Information Report dated 27.03.2005

lodged by the defendant – appellant and various other evidence were also

filed by the plaintiff – respondent. However, despite specific allegation of

mental cruelty on various grounds including lodging of the false First

Information Report against the plaintiff – respondent and his family

members, the evidence led in this regard by him could not be disproved

by the defendant – appellant. Despite specific allegations of lodging false

first information report, the defendant – appellant/wife has chosen not to

lead even her oral evidence. Considering the facts and evidences on

record, the Principal Judge Family Court, Meerut decreed the suit by

judgement dated 16.12.2006 dissolving the marriage.

8.Aggrieved with the aforesaid judgement and decree, the defendant

– appellant has filed the present appeal.

9.Perusal of the order sheet of the aforesaid appeal shows that this

Court made serious efforts for amicable settlement between the parties but

it failed. In this regard, it would be appropriate to reproduce the order

dated 03.04.2014 as under :

“In pursuance of the order dated 24.02.2014, both the

parties along with their counsel are present.

We talked to them individually and in presence of each other

alongwith their counsel. We are sorry to record that all our

efforts for amicable settlement between the parties have

failed. Thus there is no option left but to place the appeal for

adjudication on merits.

5

List the appeal in its turn.”

Submissions of the defendant-appellant

10.(i) The plaintiff-respondent has not taken any ground of cruelty in

the plaint. Therefore, the impugned judgment and decree granted by the

Court below on the ground of cruelty and dissolving the marriage, is

illegal.

(ii)The averments made in para no.15 of the plaint does not amount to

cruelty.

(iii)The impugned order for dissolving the marriage under Section 13

of the Hindu Marriage Act, 1955 has been passed without affording

opportunity of hearing to the defendant-appellant.

(iv)The application 20-Ga for summoning several police officers and

staff in evidence was illegally rejected by the Court by order dated

21.11.2006.

(v)Not adding the sur-name "Panda" by the defendant-appellant, with

her name or with the name of her son, does not amount to cruelty.

(vi)Even if the defendant-appellant has not filed her oral evidence yet it

shall make no difference inasmuch as the PWs 1 and 2 were examined by

the defendant.

Submissions of the plaintiff-respondent

11.(i) The cruelty has been well proved by the plaintiff-respondent and

finding recorded in this regard in the impugned judgement are based on

consideration of relevant evidences on record.

(ii) The plaintiff-respondent and the defendant-appellant are undisputedly

living separately since 1999 and thus, more than 23 years have passed and

they are not ready to live together. Therefore, in any view of the matter,

the parties cannot be directed to live together. There is irretrievable break

down and the tie of marriage cannot be restored. The decree of divorce

6

itself was passed on 16.12.2006 and thus, about 16 years have already

passed from the date of decree of divorce. Reliance is placed upon the

judgment of Supreme Court dated 13.09.2021 in Civil Appeal

Nos.4984-4985 of 2021, (Sivasankaran versus Santhimeenal).

(iii) In any view of the matter, no order for the parties to live together,

should be passed on facts of the present case. Reliance is placed upon the

judgment of Supreme Court in the case of Naveen Kohli versus Neelu

Kohli, (2006) 4 SCC 558.

Discussion and Findings

12.Brief facts of the case and the submissions of learned counsels for

the parties as noted above clearly shows that the grounds for divorce taken

by the plaintiff – respondent was mainly “mental cruelty”. The parties

have also led their evidences in this regard. It has been admitted by the

learned counsel for the defendant – appellant and also as reflected from

his submission No.(vi) noted above, that although the plaintiff –

respondents led the oral evidence of PW – 1 and PW -2 and were crossed

examined at length by the defendant – appellant but the defendant –

appellant has not led any oral evidence. She has also not even filed copies

of the order/judgments of trial Court in criminal cases lodged by her

against the plaintiff – respondent and his family members. The plaintiff –

respondent has led evidences to prove that the first information report

lodged by the defendant – appellant, were based on false allegations. The

defendant – appellant has not led any evidence to disprove it or to prove

that the first information report lodged by her were not based on false

allegation. She has not even led her oral evidence. The court below has

considered the evidence on record and framed five issues out of which the

issue Nos. 1 and 5 were crucial for decision on the question of divorce

which are reproduced below :

7

“1- vA:RwK'3:CV. R.sR3:V Ros RH:4RZू-':Ro:RiA3F:-RCoA:RFr? यकिद हां तो

7Ho:RwS:3?

5- vA:R3:V Ros RCu':Rb:-:Ruao:-pRos R3r3:CFoRI 3.RlsRf.:3LAoRF6'asu

o-.:R3R3:V Ros Rb:-:Rfu.sRCu':Ros RwS:3RlsRfu.sR3r3:CFoRI 3.RlsRfu.s

V:KA)3pRo:RHF Rwo:-Ru:i.R.Ro-.sRos Ro:-bRwK'3:CV. RopRV:(u)ARI 3.

C.3:2FRo-.sRlsRf6l42RCoA:RJA:RIrH:RCoRwK'3:VRu5RlsRoF:RJA:RFrjRACVRF:P

'pR7Ho:RwS:3?”

13.The issue nos. 1 and 5 aforequoted were collectively decided by the

court below. The issue no. 1 was decided in affirmative in favour of the

plaintiff. The conclusion was recorded as under :

"ku-pWRHl a:Ros Rn”:-Ru-RlrR7HRC._oE2Ru-RuFुंचा हूBRCoRA:d Ros RH:4

किवपक्षी द्वारा क्रू-':u’b2RiA3F:-RCoA:RJA:RFrRH-RA:d Ros Rl:':RCu':Rb:-:RA:d

H-RC3ua Ros Rue-3:e-oRI 3.RlsRopGRf.hKd'RF6'asuR.F RCoA:RJA:RFr

तदानुसार यह वाद किबन्दु सं० -1 Ho:-:)loRIuRlsRy3PR3:VRCT“Vु संख्या-5

.o:-:)loRIuRHsRA:d Ros RuaRlsRC.pb'RCoA:RI:':RFrjR"

14.The aforesaid conclusion in the impugned judgment is based on the

findings recorded by the court below, briefly as under :

(i)The plaintiff – husband has made allegations that the

defendant – wife expressed her unwillingness to live with the

plaintiff by alleging and insulting him that the standard of living of

his and his family members is low and the salary of the plaintiff is

so low that more than his salary, her parents used to distribute

salary to their employees. To prove this allegation, the plaintiff –

husband has filed affidavit 61 Ka, an additional affidavit 104 ka

and PW 2 filed affidavit 62 Ka and additional affidavit 105 Ka

supporting the plaintiff’s contention but the defendant – wife

neither submitted any reply to the aforesaid evidences nor produce

her evidence and also could not prove the papers filed by her by

list 8 Ga.

(ii) The defendant wife firstly joined service as physician in Uttar

Pradesh Health Department, Aligarh, but left the service for

reason that infact she was having more interest in the business of

her mother. The plaintiff -respondent filed habeas corpus Writ

Petition No.22262 of 2001 (paper No.44 Ga) for custody of his son

Aparajit Ishan Narayan, in which the father of the defendant -

appellant filed an affidavit stating that he has better resources for

protection of future of the aforesaid son and the plaintiff -

respondent has not extended any affection or protection to the

aforesaid child.

(iii)The PW – 1 has filed photographs 112 ka dated 19.8.1993,

43 Ka dated 06.09.1995, 114 Ka of the year 1993 and 115 Ka of

the year 1995 to prove that the allegation of the defendant -

appellant that the aforesaid child never remained with the plaintiff

8

and his family members is incorrect. The aforesaid photographs

were not denied by the defendant – appellant/wife.

(iv) On 17.12.1999, the defendant wife has left her

matrimonial house and went to her parents home.

(v)The defendant – wife has alleged that the plaintiff husband

has demanded in dowry Rs.5,00,000/- and a car and on non

fulfilment of the dowry demand she was beaten by the plaintiff and

for that reason she lodged crime case No.17/2000 under Section

498 A, 323, 506 I.P.C. and ¾ Dowry Prohibition Act on P.S.

Mahila Thana Sadar, Lucknow on 27.03.2000 but she has not filed

even copy of the FIR. The plaintiff – husband has filed photo copy

of the aforesaid FIR and other papers 45 Ga, 78 Ga and 80 Ga

which show that the aforesaid case crime registered as case

no.210 of 2002 and is pending in the Court of 3

rd

Additional Chief

Judicial Magistrate, Lucknow and as such no comment can be

made on it.

(vi)The defendant – wife has made allegation that the plaintiff

– husband is indulged in adultery with a lady Rita Rai. The

plaintiff – husband has denied the allegation and got recorded his

oral evidence in this regard as PW 1 and his denial was also

supported by PW -2 in his evidence, but the defendant – wife has

not produced any evidence. Thus, the plaintiff – husband has been

able to prove that the allegation of his being characterless, made

by the defendant – wife, is false. Allegations made by the

defendant – wife against the parents of the plaintiff – husband

were found to be incorrect.

(vii)The defendant – wife has made false complaints 78 Ga

against the plaintiff – husband to his higher officers and the

Director General of Police Uttar Pradesh, but she could not lead

any evidence to prove the allegations.

15.So far as the submissions Nos. (i), (ii) and (v) of learned counsel for

the defendant – appellant is concerned, we find that the averments made

by plaintiff in paras 5, 9, 10, 11, 17 and 19 of the plaint clearly discloses

the ground of cruelty.

16.So far as the submission No. (iii) made by learned counsel for the

defendant – appellant that the impugned judgement for dissolving the

marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter

referred to as “the Act 1955”) has been passed without affording an

opportunity of hearing to the defendant – appellant, is incorrect. Perusal

of the impugned judgment shows that the defendant – appellant has

appeared in the aforesaid case before the court below and not only filed

9

her written statement but also cross examined PW – 1 and PW – 2 at

length. Thus, the submission of learned counsel for the defendant –

appellant that no opportunity of hearing was afforded to the defendant –

appellant, is totally incorrect.

17.So far as the submission No. (iv) is concerned, we find that the

defendant – appellant has not taken any such specific grounds in the

grounds of appeal.

Cruelty

18.The word “cruelty” has not been defined in the Act, 1955. It has

been used in Section 13(i) (i-a) of the Act 1955 in the context of human

conduct or behaviour in relation to or in respect to matrimonial duties or

obligations. It is a course of conduct of one which is adversely affecting

the other. The cruelty may be mental or physical. It may be intentional or

unintentional. If it is physical, it is question of fact and degree. If it is

mental, the inquiry must begin as to the nature of cruel treatment and then

as to the impact of such treatment on the mind of the spouse as to whether

it caused reasonable apprehension that it would be harmful or injurious to

live with the other. It is a matter of inference to be drawn by considering

the nature of the conduct and its effect on the complaining spouse. These

principles find mention in the law laid down by Hon’ble Supreme Court

in the case of Shobha Rani Vs. Madhukar Reddi (1988) 1 SCC 105

(paras 4, 5, 6, 7 and 18).

19.Expressing similar view as aforesaid and following the decision in

the case of Shobha Rani (supra), Hon’ble Supreme Court in the case of

V. Bhagat v D. Bhagat (1994) 1 SCC 337 (para 16) broadly defined

mental cruelty, as under :

16.Mental cruelty in Section 13(1)(i-a) can broadly be defined as that

conduct which inflicts upon the other party such mental pain and

suffering as would make it not possible for that party to live with the

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

10

asked to put up with such conduct and continue to live with the other

party. It is not necessary to prove that the mental cruelty is such as to

cause injury to the health of the petitioner. While arriving at such

conclusion, regard must be had to the social status, educational level of

the 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 a matter to be determined in

each case having regard to the facts and circumstances of that case. If

it is a case of accusations and allegations, regard must also be had to

the context in which they were made.

(Emphasis supplied by us)

20.In the aforesaid judgement in the case of V. Bhagat (supra) (paras

18 & 19) Hon’ble Supreme Court has referred to its earlier judgment in

the case of Chanderkala Trivedi Vs. Dr S.P. Trivedi (1993) 4 SCC 232

(paras 2 & 3), which appears to be relevant for the purposes of

controversy involved in the present appeal.

21.Paras 18 and 19 of the judgement in the case of V. Bhagat (supra)

is reproduced below :

18. In Chanderkala Trivedi v. Dr S.P. Trivedi [(1993) 4 SCC 232 :

1993 SCC (Cri) 1154 : (1993) 3 Scale 541] the husband sued for

divorce on the ground of cruelty by wife. The wife filed a written

statement wherein she attributed adultery to the husband. In reply

thereto the husband put forward another allegation against the wife

that she was having undesirable association with young boys.

Considering the mutual allegations, R.M. Sahai, J. speaking for

Division Bench, observed: (SCC p. 233, para 2)

“Whether the allegation of the husband that she was in the habit of

associating with young boys and the findings recorded by the three

courts are correct or not but what is certain is that once such

allegations are made by the husband and wife as have been made in

this case then it is obvious that the marriage of the two cannot in any

circumstance be continued any further. The marriage appears to be

practically dead as from cruelty alleged by the husband it has turned

out to be at least intimacy of the husband with a lady doctor and

unbecoming conduct of a Hindu wife.”

19. It was argued on behalf of the husband that the wife has failed to

establish the charge of adultery levelled against him and that the

charge of adultery must be proved beyond reasonable doubt. Dealing

with the argument, the learned Judge observed: (SCC pp. 233-34, para

3)

“But we do not propose to examine it as we are satisfied that the

marriage is dead and the findings of fact cannot be set aside by this

Court except that the appeal can be sent back to the Division Bench to

11

decide it again which would mean another exercise in futility leading to

tortuous litigation and continued agony of the parties.”

(Emphasis supplied by us)

22.In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2

SCC 73 Hon’ble Supreme Court has explained the word “cruelty” and

“desertion” used in Section 13(1)(i) (i-a) of the Act, 1955 as under :

“6. Treating the petitioner with cruelty is a ground for divorce under

Section 13(1)(i-a) of the Act. Cruelty has not been defined under the

Act but in relation to matrimonial matters it is contemplated as a

conduct of such type which endangers the living of the petitioner with

the respondent. Cruelty consists of acts which are dangerous to life,

limb or health. Cruelty for the purpose of the Act means where one

spouse has so treated the other and manifested such feelings towards

her or him as to have inflicted bodily injury, or to have caused

reasonable apprehension of bodily injury, suffering or to have injured

health. Cruelty may be physical or mental. Mental cruelty is the

conduct of other spouse which causes mental suffering or fear to the

matrimonial life of the other. “Cruelty”, therefore, postulates a

treatment of the petitioner with such cruelty as to cause a reasonable

apprehension in his or her mind that it would be harmful or

injurious for the petitioner to live with the other party. Cruelty,

however, has to be distinguished from the ordinary wear and tear of

family life. It cannot be decided on the basis of the sensitivity of the

petitioner and has to be adjudged on the basis of the course of conduct

which would, in general, be dangerous for a spouse to live with the

other. In the instant case both the trial court as well as the High Court

have found on facts that the wife had failed to prove the allegations of

cruelty attributed to the respondent. Concurrent findings of fact arrived

at by the courts cannot be disturbed by this Court in exercise of powers

under Article 136 of the Constitution of India. Otherwise also the

averments made in the petition and the evidence led in support thereof

clearly show that the allegations, even if held to have been proved,

would only show the sensitivity of the appellant with respect to the

conduct of the respondent which cannot be termed more than ordinary

wear and tear of the family life.

8.“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

12

authorities and the views of various authors, this Court

in Bipinchandra Jaisinghbai Shah v. Prabhavati [AIR 1957 SC 176]

held that if a spouse abandons the other in a state of temporary

passion, for example, anger or disgust without intending permanently

to cease cohabitation, it will not amount to desertion. It further held :

(AIR pp. 183-84, para 10)

“For the offence of desertion, so far as the deserting spouse is

concerned, two essential conditions must be there, namely (1) the

factum of separation, and (2) theintention 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. The petitioner for divorce bears the burden of proving those

elements in the two spouses respectively. Here a difference between the

English law and the law as enacted by the Bombay Legislature may be

pointed out. Whereas under the English law those essential conditions

must continue throughout the course of the three years immediately

preceding the institution of the suit for divorce, under the Act, the

period is four years without specifying that it should immediately

precede the commencement of proceedings for divorce. Whether the

omission of the last clause has any practical result need not detain us,

as it does not call for decision in the present case. Desertion is a

matter of inference to be drawn from the facts and circumstances of

each case. 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 intention, both anterior

and subsequent to the actual acts of separation. If, in fact, there has

been a separation, the essential question always is whether that act

could be attributable to an animus deserendi. The offence of desertion

commences when the fact of separation and the animus

deserendi coexist. But it is not necessary that they should commence

at the same time. The de facto separation may have commenced

without the necessary animus or it may be that the separation and

the animus deserendi coincide in point of time; for example, when the

separating spouse abandons the marital home with the intention,

express or implied, of bringing cohabitation permanently to a close.

The law in England has prescribed a three years' period and the

Bombay Act prescribed a period of four years as a continuous period

during which the two elements must subsist. Hence, if a deserting

spouse takes advantage of the locus poenitentiae thus provided by law

and decide to come back to the deserted spouse by a bona fide offer of

resuming the matrimonial home with all the implications of marital

life, before the statutory period is out or even after the lapse of that

period, unless proceedings for divorce have been commenced,

desertion comes to an end and if the deserted spouse unreasonably

refuses the offer, the latter may be in desertion and not the former.

Hence it is necessary that during all the period that there has been a

desertion, the deserted spouse must affirm the marriage and be ready

and willing to resume married life on such conditions as may be

reasonable. It is also well settled that in proceedings for divorce the

plaintiff must prove the offence of desertion, like and other matrimonial

offence, beyond all reasonable doubt. Hence, though corroboration is

not required as an absolute rule of law the courts insist upon

13

corroborative evidence, unless its absence is accounted for to the

satisfaction of the court.”

9. Following the decision in Bipinchandra case [AIR 1957 SC 176] this

Court again reiterated the legal position in Lachman Utamchand

Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence

desertion means the intentional permanent forsakingand 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 intention, both anterior and subsequent to the actual acts

of separation.

10. To prove desertion in matrimonial matter it is not always necessary

that one of the spouses should have left the company of the other as

desertion could be proved while living under the same roof. Desertion

cannot be equated with separate living by the parties to the marriage.

Desertion may also be constructive which can be inferred from the

attending circumstances. It has always to be kept in mind that the

question of desertion is a matter of inference to be drawn from the

facts and circumstances of each case.

11. There is another aspect of the matter which disentitles the appellant

from seeking the relief of divorce on the ground of desertion in this

case. As desertion in matrimonial cases means the withdrawal of one

party from a state of things i.e. the marital status of the party, no party

to the marriage can be permitted to allege desertion unless he or she

admits that after the formal ceremonies of the marriage, the parties

had recognised and discharged the common obligation of the married

life which essentially requires the cohabitation between the parties for

the purpose of consummating the marriage. Cohabitation by the

parties is an essential of a valid marriage as the object of the marriage

is to further the perpetuation of the race by permitting lawful

indulgence in passions for procreation of children. In other words,

there can be no desertion without previous cohabitation by the

parties. The basis for this theory is built upon the recognised position

of law in matrimonial matters that no one can desert who does not

actively or wilfully bring to an end the existing state of cohabitation.

However, such a rule is subject to just exceptions which may be found

in a case on the ground of mental or physical incapacity or other

peculiar circumstances of the case. However, the party seeking divorce

on the ground of desertion is required to show that he or she was not

taking the advantage of his or her own wrong. In the instant case the

appellant herself pleaded that there had not been cohabitation between

the parties after the marriage. She neither assigned any reason nor

attributed the non-resumption of cohabitation to the respondent. From

the pleadings and evidence led in the case, it is apparent that the

appellant did not permit the respondent to have cohabitation for

14

consummating the marriage. In the absence of cohabitation between

the parties, a particular state of matrimonial position was never

permitted by the appellant to come into existence. In the present case,

in the absence of cohabitation and consummation of marriage, the

appellant was disentitled to claim divorce on the ground of desertion.

12. No evidence was led by the appellant to show that she was forced

to leave the company of the respondent or that she was thrown away

from the matrimonial home or that she was forced to live separately

and that the respondent had intended animus deserendi. There is

nothing on record to hold that the respondent had ever declared to

bring the marriage to an end or refused to have cohabitation with the

appellant. As a matter of fact the appellant is proved to have

abandoned the matrimonial home and declined to cohabit with the

respondent thus forbearing to perform the matrimonial obligation.

(Emphasis supplied by us)

23.In recent decision in the case of Devanand Tamuli Vs. Kakumoni

Kataky (2022) 5 SCC 459 (paras 7 to 12) Hon’ble Supreme Court

explained the principles of desertion and interpreted the word

“desertion” to mean intentional abandonment of one spouse by the

other without the consent of other and without a reasonable cause.

24.In the case of Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC

706 (para 21) Hon’ble Supreme Court further interpreted the words

“mental cruelty” and held as under :

“21.Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a

behaviour by one spouse towards the other, which causes reasonable

apprehension in the mind of the latter that it is not safe for him or her

to continue the matrimonial relationship with the other. Mental cruelty

is a state of mind and feeling with one of the spouses due to the

behaviour or behavioural pattern by the other. Unlike the case of

physical cruelty, mental cruelty is difficult to establish by direct

evidence. It is necessarily a matter of inference to be drawn from the

facts and circumstances of the case. A feeling of anguish,

disappointment and frustration in one spouse caused by the conduct of

the other can only be appreciated on assessing the attending facts and

circumstances in which the two partners of matrimonial life have been

living. The inference has to be drawn from the attending facts and

circumstances taken cumulatively. In case of mental cruelty it will not

be a correct approach to take an instance of misbehaviour in isolation

and then pose the question whether such behaviour is sufficient by

itself to cause mental cruelty. The approach should be to take the

cumulative effect of the facts and circumstances emerging from the

evidence on record and then draw a fair inference whether the

petitioner in the divorce petition has been subjected to mental cruelty

due to conduct of the other.”

15

(Emphasis supplied by us)

25.In the case of Vishwanath Agrawal v. Sarla Vishwanath

Agrawal, (2012) 7 SCC 288 (paras 22 to 33) Hon’ble Supreme Court

again referred to its various earlier judgements interpreted the word

“cruelty” and held as under :

“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.

23. In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa

Yasinkhan [(1981) 4 SCC 250 : 1981 SCC (Cri) 829] , a two-Judge

Bench approved the concept of legal cruelty as expounded

in Pancho v. Ram Prasad [AIR 1956 All 41] wherein it was stated thus:

(Pancho case [AIR 1956 All 41] , AIR p. 43, para 3)

“3. … Conception of legal cruelty undergoes 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 separate 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

may undermine the health of a wife.”

It is apt to note here that the said observations were made while

dealing with the Hindu Married Women's Right to Separate Residence

and Maintenance Act (19 of 1946). This Court, after reproducing the

passage, has observed that the learned Judge has put his finger on the

correct aspect and object of mental cruelty.

24. In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988 SCC

(Cri) 60] , while dealing with “cruelty” under Section 13(1)(i-a) of the

Act, this Court observed that the said provision does not define

“cruelty” and the same could not be defined. “Cruelty” may be mental

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

have no problem to determine it. It is a question of fact and degree. If it

is mental, the problem presents difficulty. Thereafter, the Bench

proceeded to state as follows: (SCC p. 108, para 4)

“4. … First, the enquiry must begin as to the nature of the cruel

treatment. Second, 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, it is a matter of

inference to be drawn by taking into account the nature of the conduct

and its effect on the complaining spouse. There may, however, be cases

where the conduct complained of itself is bad enough and per se

unlawful or illegal. Then the impact or the injurious effect on the

other spouse need not be enquired into or considered. In such cases,

16

the cruelty will be established if the conduct itself is proved or

admitted.”

25. After so stating, this Court observed in Shobha Rani case [(1988) 1

SCC 105 : 1988 SCC (Cri) 60] about the marked change in life in

modern times and the sea change in matrimonial duties and

responsibilities. It has been observed that: (SCC p. 108, para 5)

“5. … when a spouse makes a complaint about the treatment of cruelty

by the partner in life or relations, the court should not search for

standard in life. A set of facts stigmatised as cruelty in one case may

not be so in another case. The cruelty alleged may largely depend

upon the type of life the parties are accustomed to or their economic

and social conditions. It may also depend upon their culture and

human values to which they attach importance.”

26. Their Lordships in Shobha Rani case [(1988) 1 SCC 105 : 1988

SCC (Cri) 60] referred to the observations made

in Sheldon v. Sheldon [1966 P 62 : (1966) 2 WLR 993 : (1966) 2 All ER

257 (CA)] wherein Lord Denning stated, “the categories of cruelty are

not closed”. Thereafter, the Bench proceeded to state thus: (Shobha

Rani case [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , SCC p. 109,

paras 5-6)

“5. … Each case may be different. We deal with the conduct of human

beings who are not generally similar. Among the human beings there is

no limit to the kind of conduct which may constitute cruelty. New type

of cruelty may crop up in any case depending upon the human

behaviour, capacity or incapability to tolerate the conduct complained

of. Such is the wonderful (sic) realm of cruelty.

6. These preliminary observations are intended to emphasise that the

court in matrimonial cases is not concerned with ideals in family life.

The court has only to understand the spouses concerned as nature

made them, and consider their particular grievance. As Lord Reid

observed in Gollins v. Gollins [1964 AC 644 : (1963) 3 WLR 176 :

(1963) 2 All ER 966 (HL)] : (All ER p. 972 G-H)

‘… In matrimonial affairs we are not dealing with objective standards,

it is not a matrimonial offence to fall below the standard of the

reasonable man (or the reasonable woman). We are dealing

with this man or this woman.’”

(emphasis in original)

27. In V. Bhagat v. D. Bhagat [(1994) 1 SCC 337] , a two-Judge Bench

referred to the amendment that had taken place in Sections 10 and

13(1)(i-a) after the (Hindu) Marriage Laws (Amendment) Act, 1976

and proceeded to hold that the earlier requirement that such cruelty

has caused a reasonable apprehension in the mind of a spouse that it

would be harmful or injurious for him/her to live with the other one is

no longer the requirement. Thereafter, this Court proceeded to deal

with what constitutes mental cruelty as contemplated in Section 13(1)

(i-a) and observed that mental cruelty in the said provision can broadly

be defined as that conduct which inflicts upon the other party such

mental pain and suffering as would make it not possible for that party

to live with the other. To put it differently, 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 the other party. It was further observed, while arriving at such

conclusion, that regard must be had to the social status, educational

17

level of the 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. What is

cruelty in one case may not amount to cruelty in another case and it

has to be determined in each case keeping in view the facts and

circumstances of that case. That apart, the accusations and allegations

have to be scrutinised in the context in which they are made. Be it

noted, in the said case, this Court quoted extensively from the

allegations made in the written statement and the evidence brought on

record and came to hold that the said allegations and counter-

allegations were not in the realm of ordinary plea of defence and did

amount to mental cruelty.

28. In Parveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706 : AIR 2002

SC 2582] , it has been held that mental cruelty is a state of mind and

feeling with one of the spouses due to behaviour or behavioural pattern

by the other. Mental cruelty cannot be established by direct evidence

and it is necessarily a matter of inference to be drawn from the facts

and circumstances of the case. “A feeling of anguish, disappointment

and frustration in one spouse caused by the conduct of the other can

only be appreciated on assessing the attending facts and circumstances

in which the two partners of matrimonial life have been living.”

(Parveen Mehta case [(2002) 5 SCC 706 : AIR 2002 SC 2582] , SCC p.

716, para 21) The facts and circumstances are to be assessed emerging

from the evidence on record and thereafter, a fair inference has to be

drawn whether the petitioner in the divorce petition has been subjected

to mental cruelty due to the conduct of the other.

29. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar

Bhate [(2003) 6 SCC 334 : AIR 2003 SC 2462] , it has been opined

that a conscious and deliberate statement levelled with pungency and

that too placed on record, through the written statement, cannot be so

lightly ignored or brushed aside.

30. In A. Jayachandra v. Aneel Kaur [(2005) 2 SCC 22] , it has been

ruled that the question of mental cruelty has to be considered in the

light of the norms of marital ties of the particular society to which the

parties belong, their social values, status and environment in which

they live. If from the conduct of the spouse, it is established and/or an

inference can legitimately be drawn that the treatment of the spouse is

such that it causes an apprehension in the mind of the other spouse

about his or her mental welfare, then the same would amount to

cruelty. While dealing with the concept of mental cruelty, enquiry must

begin as to the nature of cruel treatment and the impact of such

treatment on the mind of the spouse. It has to be seen whether the

conduct is such that no reasonable person would tolerate it.

31. In Vinita Saxena v. Pankaj Pandit [(2006) 3 SCC 778] , it has

been ruled that as to what constitutes mental cruelty for the purposes

of Section 13(1)(i-a) will not depend upon the numerical count of such

incident or only on the continuous course of such conduct but one has

to really go by the intensity, gravity and stigmatic impact of it when

meted out even once and the deleterious effect of it on the mental

attitude necessary for maintaining a conducive matrimonial home.

32. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] , this Court,

after surveying the previous decisions and referring to the concept of

cruelty, which includes mental cruelty, in English, American, Canadian

18

and Australian cases, has observed that: (SCC pp. 545-46, paras 99-

100)

“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

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….”

33. In Suman Kapur v. Sudhir Kapur [(2009) 1 SCC 422 : (2009) 1

SCC (Civ) 204 : AIR 2009 SC 589] , after referring to various

decisions in the field, this Court took note of the fact that the wife had

neglected to carry out the matrimonial obligations and further, during

the pendency of the mediation proceeding, had sent a notice to the

husband through her advocate alleging that he had another wife in

USA whose identity was concealed. The said allegation was based on

the fact that in his income tax return, the husband mentioned the

“Social Security Number” of his wife which did not belong to the wife,

but to an American lady. The husband offered an explanation that it

was merely a typographical error and nothing else. The High Court

had observed that taking undue advantage of the error in the “Social

Security Number”, the wife had gone to the extent of making serious

allegation that the husband had married an American woman whose

“Social Security Number” was wrongly typed in the income tax return

of the husband. This fact also weighed with this Court and was treated

that the entire conduct of the wife did tantamount to mental cruelty.”

(Emphasis supplied by us)

Instances of cruelty

26.The word cruelty has not been defined under the Act 1955. In the

case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 (para 101)

Hon’ble Supreme Court has given certain illustrations. Some instances of

human behaviour which may be relevant in dealing with the case of

“mental cruelty”, and held as under :

“101. No uniform standard can ever be laid down for guidance, yet we

deem it appropriate to enumerate some instances of human behaviour

19

which may be relevant in dealing with the cases of “mental cruelty”.

The instances indicated in the succeeding paragraphs are only

illustrative and not exhaustive:

(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 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 behaviour 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

behaviour 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 sterilisation

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 bond is beyond repair.

20

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.”

27.The aforementioned illustrations given in the case of Samar Ghosh

(supra) have been reiterated by Hon’ble Supreme Court in the case of K.

Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 (para 10) and after

referring to various judgments observed/held as under (paras 12 to 16) :

12. It is pertinent to note that in Samar Ghosh case [(2007) 4 SCC 511]

the husband and wife had lived separately for more than sixteen-and-a-

half years. This fact was taken into consideration along with other

facts as leading to the conclusion that matrimonial bond had been

ruptured beyond repair because of the mental cruelty caused by the

wife. Similar view was taken in Naveen Kohli [(2006) 4 SCC 558] .

13. In V. Bhagat v. D. Bhagat [(1994) 1 SCC 337] in the divorce

petition filed by the husband the wife filed written statement stating

that the husband was suffering from mental hallucination, that his was

a morbid mind for which he needs expert psychiatric treatment and

that he was suffering from “paranoid disorder”. In cross-examination

her counsel put several questions to the husband suggesting that

several members of his family including his grandfather were lunatics.

This Court held that these assertions cannot but constitute mental

cruelty of such a nature that the husband cannot be asked to live with

the wife thereafter. Such pleadings and questions, it was held, are

bound to cause immense mental pain and anguish to the husband.

14. In Vijaykumar Bhate [(2003) 6 SCC 334] disgusting accusations of

unchastity and indecent familiarity with a neighbour were made in the

written statement. This Court held that the allegations are of such

quality, magnitude and consequence as to cause mental pain, agony

and suffering amounting to the reformulated concept of cruelty in

matrimonial law causing profound and lasting disruption and driving

the wife to feel deeply hurt and reasonably apprehend that it would be

dangerous to live with her husband.

15. In Naveen Kohli [(2006) 4 SCC 558] the respondent wife got an

advertisement issued in a national newspaper that her husband was

her employee. She got another news item issued cautioning his

business associates to avoid dealing with him. This was treated as

causing mental cruelty to the husband. In Naveen Kohli [(2006) 4 SCC

558] the wife had filed several complaints and cases against the

husband. This Court viewed her conduct as a conduct causing mental

cruelty and observed that: (SCC p. 582, para 82)

“82. … The findings of the High Court that these proceedings could

not be taken to be such which may warrant annulment of marriage, is

wholly unsustainable.”

16. Thus, to the instances illustrative of mental cruelty noted in Samar

Ghosh [(2007) 4 SCC 511] , we could add a few more. Making

21

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.

(Emphasis supplied by us)

28.In the case of Ravi Kumar v. Julmidevi, (2010) 4 SCC 476 (para

19) Hon’ble Supreme Court while observing that “cruelty” in matrimonial

behaviour defies any definition and its categories can never be closed and

whether the husband is cruel to his wife or the wife is cruel to her husband

has to be ascertained and judged by taking into account the entire facts

and circumstances of the given case and not by any pre-determined rigid

formula, held as under :

“19. It may be true that there is no definition of cruelty under the said

Act. Actually such a definition is not possible. In matrimonial

relationship, cruelty would obviously mean absence of mutual respect

and understanding between the spouses which embitters the

relationship and often leads to various outbursts of behaviour which

can be termed as cruelty. Sometime cruelty in a matrimonial

relationship may take the form of violence, sometime it may take a

different form. At times, it may be just an attitude or an approach.

Silence in some situations may amount to cruelty”.

29.In the case of A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22,

(para 13 & 14) Hon’ble Supreme Court held as under :

“13. The court dealing with the petition for divorce on the ground of

cruelty has to bear in mind that the problems before it are those of

human beings and the psychological changes in a spouse's conduct

have to be borne in mind before disposing of the petition for divorce.

However insignificant or trifling, such conduct may cause pain in the

mind of another. But before the conduct can be called cruelty, it must

touch a certain pitch of severity. It is for the court to weigh the gravity.

It has to be seen whether the conduct was such that no reasonable

person would tolerate it. It has to be considered whether the

complainant should be called upon to endure as a part of normal

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

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

between spouses, which happen in day-to-day married life, may also

not amount to cruelty. Cruelty in matrimonial life may be of unfounded

variety, which can be subtle or brutal. It may be words, gestures or by

mere silence, violent or non-violent.

14. The foundation of a sound marriage is tolerance, adjustment and

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

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

22

trifling differences should not be exaggerated and magnified to destroy

what is said to have been made in heaven. All quarrels must be

weighed from that point of view in determining what constitutes cruelty

in each particular case and as noted above, always keeping in view the

physical and mental conditions of the parties, their character and

social status. A too technical and hypersensitive approach would be

counterproductive to the institution of marriage. The courts do not

have to deal with ideal husbands and ideal wives. It has to deal with a

particular man and woman before it. The ideal couple or a mere ideal

one will probably have no occasion to go to Matrimonial Court.

[See N.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326 : AIR 1975

SC 1534]”

30.In the case of Mangayakarasi Vs. M Yuvaraj (2020) 3 SCC 786

(para 14), Hon’ble Supreme Court observed that unsubstantiated

allegation of dowry demand or such other allegation made by the wife

against the husband and his family members which exposed them to

criminal litigation and ultimately it is found that such allegation is

unwarranted and without basis and if that act of the wife itself forms

the basis for the husband to allege that mental cruelty has been

inflicted on him, certainly, in such circumstance, if a petition for

dissolution of marriage is filed on that ground and evidence is

tendered before the original court to allege mental cruelty it could

well be appreciated for the purpose of dissolving the marriage on that

ground.

Irretrievable Breakdown of the Marriage

31.In the case of Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558

(paras 66 and 91), Hon’ble Supreme Court observed irretrievable

breakdown of marriage as a ground for divorce and held as under :

“Irretrievable breakdown of marriage

66. Irretrievable breakdown of marriage is not a ground for divorce

under the Hindu Marriage Act, 1955. Because of the change of

circumstances and for covering a large number of cases where the

marriages are virtually dead and unless this concept is pressed into

service, the divorce cannot be granted. Ultimately, it is for the

legislature whether to include irretrievable breakdown of marriage as

a ground of divorce or not but in our considered opinion the legislature

must consider irretrievable breakdown of marriage as a ground for

grant of divorce under the Hindu Marriage Act, 1955.

23

91. Before we part with this case, on consideration of the totality of

facts, this Court would like to recommend the Union of India to

seriously consider bringing an amendment in the Hindu Marriage

Act, 1955 to incorporate irretrievable breakdown of marriage as a

ground for the grant of divorce. A copy of this judgment be sent to the

Secretary, Ministry of Law and Justice, Department of Legal Affairs,

Government of India for taking appropriate steps.”

(Emphasis supplied by us)

32.Three judges Bench of Hon’ble Supreme Court in the case Samar

Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 (paras 90 to 95) referred and

relied upon 71

st

report of law commission of India which briefly dealt

with concept of Irretrievable breakdown of marriage and held as under:

“90. We have examined and referred to the cases from the various

countries. We find strong basic similarity in adjudication of cases

relating to mental cruelty in matrimonial matters. Now, we deem it

appropriate to deal with the 71st Report of the Law Commission of

India on “Irretrievable Breakdown of Marriage”.

91. The 71st Report of the Law Commission of India briefly dealt

with the concept of irretrievable breakdown of marriage. This report

was submitted to the Government on 7-4-1978. In this report, it is

mentioned that during last 20 years or so, and now it would be around

50 years, a very important question has engaged the attention of

lawyers, social scientists and men of affairs, should the grant of

divorce be based on the fault of the party, or should it be based on the

breakdown of the marriage? The former is known as the matrimonial

offence theory or fault theory. The latter has come to be known as the

breakdown theory. It would be relevant to recapitulate recommendation

of the said Report.

92. In the Report, it is mentioned that the germ of the breakdown

theory, so far as Commonwealth countries are concerned, may be

found in the legislative and judicial developments during a much

earlier period. The (New Zealand) Divorce and Matrimonial Causes

Amendment Act, 1920, included for the first time the provision that a

separation agreement for three years or more was a ground for making

a petition to the court for divorce and the court was given a discretion

(without guidelines) whether to grant the divorce or not. The discretion

conferred by this statute was exercised in a

case Lodder v. Lodder [1921 NZLR 786] . Salmond, J., in a passage

which has now become classic, enunciated the breakdown principle in

these words:

“The legislature must, I think, be taken to have intended that

separation for three years is to be accepted by this Court, as prima

facie a good ground for divorce. When the matrimonial relation has for

that period ceased to exist de facto, it should, unless there are special

reasons to the contrary, cease to exist de jure also. In general, it is not

in the interests of the parties or in the interest of the public that a man

and woman should remain bound together as husband and wife in law

when for a lengthy period they have ceased to be such in fact. In the

case of such a separation the essential purposes of marriage have been

24

frustrated, and its further continuance is in general not merely useless

but mischievous.”

93. In the said Report, it is mentioned that restricting the ground of

divorce to a particular offence or matrimonial disability, causes

injustice in those cases where the situation is such that although

none of the parties is at fault, or the fault is of such a nature that the

parties to the marriage do not want to divulge it, yet such a situation

has arisen in which the marriage cannot survive. The marriage has

all the external appearances of marriage, but none in reality. As is

often put pithily, the marriage is merely a shell out of which the

substance is gone. In such circumstances, it is stated, there is hardly

any utility in maintaining the marriage as a facade, when the

emotional and other bonds which are of the essence of marriage have

disappeared.

94. It is also mentioned in the Report that in case the marriage has

ceased to exist in substance and in reality, there is no reason for

denying divorce, then the parties alone can decide whether their

mutual relationship provides the fulfilment which they seek. Divorce

should be seen as a solution and an escape route out of a difficult

situation. Such divorce is unconcerned with the wrongs of the past,

but is concerned with bringing the parties and the children to terms

with the new situation and developments by working out the most

satisfactory basis upon which they may regulate their relationship in

the changed circumstances.

95. Once the parties have separated and the separation has continued

for a sufficient length of time and one of them has presented a

petition for divorce, it can well be presumed that the marriage has

broken down. The court, no doubt, should seriously make an

endeavour to reconcile the parties; yet, if it is found that the

breakdown is irreparable, then divorce should not be withheld. The

consequences of preservation in law of the unworkable marriage

which has long ceased to be effective are bound to be a source of

greater misery for the parties.”

(Emphasis supplied by us)

33.In recent judgement in the case of Munish Kakkar v. Nidhi

Kakkar, (2020) 14 SCC 657, relying upon the judgement in the case of

S. Srinivas Kumar Vs. R. Shametha (2019) 9 SCC 409 Hon’ble

Supreme Court granted the decree of divorce on the ground of

irretrievable breakdown of marriage in exercise of its extra ordinary

power under Article 142 of the Constitution of India and specifically

clarified that it is only this Court i.e. the Supreme Court which can do

so in exercise of powers under Article 142 of the Constitution of India.

Para 19 of the judgement is reproduced below :

“19.We may note that in a recent judgment of this Court, in R.

Srinivas Kumar v. R. Shametha [R. Srinivas Kumar v. R. Shametha,

(2019) 9 SCC 409 : (2019) 4 SCC (Civ) 522] , to which one of us

25

(Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground

of irretrievable breakdown of marriage, after examining various

judicial pronouncements. It has been noted that such powers are

exercised not in routine, but in rare cases, in view of the absence of

legislation in this behalf, where it is found that a marriage is totally

unworkable, emotionally dead, beyond salvage and has broken down

irretrievably. That was a case where parties had been living apart for

the last twenty-two (22) years and a re-union was found to be

impossible. We are conscious of the fact that this Court has also

extended caution from time to time on this aspect, apart from noticing

that it is only this Court which can do so, in exercise of its powers

under Article 142 of the Constitution of India. If parties agree, they

can always go back to the trial court for a motion by mutual consent,

or this Court has exercised jurisdiction at times to put the matter at rest

quickly. But that has not been the only circumstance in which a decree

of divorce has been granted by this Court. In numerous cases, where a

marriage is found to be a dead letter, the Court has exercised its

extraordinary power under Article 142 of the Constitution of India to

bring an end to it.”

(Emphasis supplied by us)

34.In the case of Neha Tyagi Vs. Deepak Tyagi (2022) 3 SCC 86,

Hon’ble Supreme Court, exercising the powers under Article 142 of the

Constitution of India; did not interfere with the dissolution of marriage on

account of irretrievable breakdown of marriage.

35.Thus, the principles of law for divorce under Section 13 of the

Act, 1955, on the ground of cruelty, desertion or irretrievable

breakdown of marriage, may be briefly summarised as under :

(i) The foundation of a sound marriage is tolerance, adjustment

and respecting one another. Tolerance to each other's fault to a

certain bearable extent has to be inherent in every marriage.

Petty quibbles, trifling differences should not be exaggerated

and magnified to destroy married life. Too technical and

hypersensitive approach in matrimonial matters would be

counterproductive to the institution of marriage. Therefore,

approach should be to make effort to reconcile differences as far

as possible.

(ii)The word “cruelty” has not been defined in the Act,

1955. It has been used in Section 13(i)/(i-a) of the Act 1955 in

the context of human conduct or behaviour in relation to or in

respect to matrimonial duties or obligations. It is a course of

conduct of one which is adversely affecting the other. The cruelty

may be mental or physical. It may be intentional or

unintentional. If it is physical, it is question of fact and degree. If

it is mental, the inquiry must begin as to the nature of cruel

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

mind of the spouse as to whether it caused reasonable

apprehension that it would be harmful or injurious to live with

26

the other. It is a matter of inference to be drawn by considering

the nature of the conduct and its effect on the complaining

spouse.

(iii) 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. Concept of mental cruelty cannot remain static; it is

bound to change with the passage of time, impact of 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.

(vii)Instances of cruelty given by Hon’ble Supreme Court in

the case of Samar Ghosh (supra) and K. Srinivas Rao (supra)

are not exhaustive but illustrative which have been reproduced

in para 26 above.

(iv)Mental cruelty is the conduct of other spouse which causes

mental suffering or fear to the matrimonial life of the other.

“Cruelty”, therefore, postulates a treatment of the petitioner

with such cruelty as to cause a reasonable apprehension in his

or her mind that it would be harmful or injurious for the

petitioner to live with the other party. Cruelty, however, has to be

distinguished from the ordinary wear and tear of family life.

(v) What is cruelty in one case may not amount to cruelty in

another case. Unlike the case of physical cruelty, mental cruelty

is difficult to be established by direct evidence. It is necessarily a

matter of inference to be drawn from the facts and circumstances

of the case. The approach should be to take the cumulative effect

of the facts and circumstances emerging from the evidence on

record and then draw a fair inference whether the petitioner in

the divorce petition has been subjected to mental cruelty due to

conduct of the other.

(vi)First, the enquiry must begin as to the nature of the cruel

treatment. Second, 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. There may,

however, be cases where the conduct complained of itself is bad

enough and per se unlawful or illegal. Then the impact or the

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

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

conduct itself is proved or admitted.

(viii)In the case of K. Srinivas Rao (supra) another instance

of mental cruelty was added stating that 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

27

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.

(ix) In Mangayakarasi (supra) Hon’ble Supreme Court further

explained the scope of cruelty stating that unsubstantiated

allegation of dowry demand or such other allegation made by

the wife against the husband and his family members which

exposed them to criminal litigation and ultimately it is found that

such allegation is unwarranted and without basis and if that act

of the wife itself forms the basis for the husband to allege that

mental cruelty has been inflicted on him, certainly, in such

circumstance, if a petition for dissolution of marriage is filed on

that ground and evidence is tendered before the original court to

allege mental cruelty it could well be appreciated for the

purpose of dissolving the marriage on that ground.

(xi)“Desertion”, for the purpose of seeking divorce under

the Act,1955, 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. If a

spouse abandons the other in a state of temporary passion, for

example, anger or disgust without intending permanently to

cease cohabitation, it will not amount to desertion. 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. The offence of desertion

commences when the fact of separation and the animus

deserendi coexist. But it is not necessary that they should

commence at the same time.

(xii)Irretrievable breakdown of marriage is not a ground for

divorce under the Hindu Marriage Act, 1955. Because of the

change of circumstances and for covering a large number of

cases where the marriages are virtually dead and unless this

concept is pressed into service, the divorce cannot be granted.

Once the parties have separated and the separation has

continued for a sufficient length of time and one of them has

presented a petition for divorce, it can well be presumed that the

marriage has broken down. The court, no doubt, should

seriously make an endeavour to reconcile the parties; yet, if it is

found that the breakdown is irreparable, then divorce should not

28

be withheld. The consequences of preservation in law of the

unworkable marriage which has long ceased to be effective are

bound to be a source of greater misery for the parties. The

power to dissolve marriage on the ground of irretrievable

breakdown is exercised in rare cases, and not in routine, in the

absence of legislation in this behalf. In a recent judgment in

Munish Kakkar (supra), it has been held that it is only the

Supreme Court which can dissolve marriage on the ground of

irretrievable breakdown, in exercise of its power under Article

142 of the Constitution of India, where it is found that a

marriage is totally unworkable, emotionally dead, beyond

salvage and has broken down irretrievably.

(xiii)Hon’ble Supreme Court in the case of Naveen Kohli

(supra) has recommended to the Union of India to seriously

consider bringing an amendment in the Hindu Marriage Act,

1955 to incorporate irretrievable breakdown of marriage as a

ground for the grant of divorce and a copy of the said judgement

was sent to the Secretary, Ministry of law and justice department

of legal affairs Government of India for taking appropriate

steps. In the case of Samar Ghosh (supra) Hon’ble Supreme

Court referred to 71

st

report of Law Commission of India

submitted to Government of India on 7-4-1978 in which it was

mentioned that in case the marriage has ceased to exist in

substance and in reality there is no reason for denying divorce.

Nothing has been brought on record to indicate the steps, if any,

taken by the Union of India either with respect to 71

st

report of

Law commission of India or pursuant to the recommendation of

Hon’ble Supreme Court in para 91 of the judgement in the case

of Naveen Kohli (supra). Therefore, we remind the Union of

India the recommendation made by Hon’ble Supreme Court

in the case of Naveen Kohli (supra) and the 71

st

report of the

Law Commission of India dated 7-4-1978 and request to

consider it.

36.We find from the facts noted in paras 2 to 9, the discussion in paras

12 to 17 and principle summarised in para 35 above that the plaintiff –

respondent has proved mental cruelty by the defendant – appellant, before

the Court below. Instances of making false complaints by the defendant

appellant against the plaintiff – respondent to higher authorities, making

wild allegations against the parents of the plaintiff – respondent, unproved

allegation of indulgence of the plaintiff in adultery and damaging their

reputation in the society, etc. leaves no manner of doubt that the court

below has not committed any illegality in the impugned judgment to hold

commission of mental cruelty by the defendant – appellant to the plaintiff

– respondent. The impugned judgement of the court below is based on

29

consideration of evidences on record. Thus, the impugned judgement does

not suffer from any illegality.

37.For all the reasons aforestated, we do not find any merit in this

appeal. The impugned judgment of the court below does not suffer from

any illegality. Consequently, the appeal is dismissed. Pending

applications, if any, stand disposed of.

38.Let a copy of this judgement be sent by the Registrar General of

this Court to the Secretary, Ministry of Law and Justice, Department of

Legal Affairs, Government of India to remind the Union of India in the

light of the judgements referred in paragraphs 31, 32 and 35(xiii) above.

Order Date :- 03.11.2022/vkg

30