1

A.F.R.

Reserved

In Chamber

Case :- FIRST APPEAL No. - 60 of 2016

Appellant :- Smt. Monika Gupta

Respondent :- Jitendra Gandhi

Counsel for Appellant :- Rajesh Khare,Jitendra Kumar

Chakraborty

Counsel for Respondent :- Gulab Chandra

with

Case :- FIRST APPEAL No. - 61 of 2016

Appellant :- Smt. Monika Gupta

Respondent :- Jitendra Gandhi

Counsel for Appellant :- Rajesh Khare

Counsel for Respondent :- Gulab Chandra

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Rohit Ranjan Agarwal,J.

(Delivered by: Hon’ble Rohit Ranjan Agarwal, J.)

1.Both the appeals arise out of common order of Principal

Judge, Family Court, Jhansi dated 18.1.2016 passed in Case

No.205 of 2011 filed by the appellant (Smt. Monika Gupta Vs.

Jitendra Gandhi), under Section 13 of the Hindu Marriage Act and

Case No.94 of 2011 (Jitendra Gandhi Vs. Smt. Monika Gupta),

under Section 9 of the Hindu Marrigate Act.

2.Case No.205 of 2011 was filed by appellant, Smt. Monika

Gupta against the defendant/respondent under Section 13 of the

Hindu Marriage Act for annulling marriage on 15.4.2011 before the

Principal Judge, Family Court, Jhansi. Case No.94 of 2011 was

filed by respondent, Jitendra Gandhi under Section 9 of the Hindu

Marriage Act for restitution of conjugal rights before the Court of

Additional Senior Civil Judge at Gandhi Dham (Gujarat). The said

case was transferred to the Court of Principal Judge, Family Court

at Jhansi by orders of the Supreme Court of India dated, 23.4.2012

passed on Transfer Petition (C) No.166 of 2012. Both the cases

were tried together by the Court below and was decided by

Neutral Citation No. - 2019:AHC:134438-DB

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common order.

3.Plaintiff/appellant filed Case No.205 of 2011 under Section

13 of the Hindu Marriage Act for annulling the marriage on the

ground that she was married to the defendant/respondent on

12.12.2009 according to Hindu rites and custom at Dabra, District

Gwalior (Madhya Pradesh). It was contended that when she was 7

years old, both her parents died, and she was brought up along

with her two brothers by her maternal uncle and aunt (Mausa and

mausi). It is they who had performed the ceremony of 'Kanyadan'

and gave dowry as per their status. It was contended that after

marriage, there was constant demand for dowry by the in-laws and

appellant was not treated well. For three weeks, she stayed at her

in-laws house and, thereafter came to her maternal home along

with her brother and after living for 15 days, she again went back to

her in-laws house from where her husband took her to Gandhi

Dham, Gujarat.

4.In paragraph no.5 of the plaint, it has been specifically stated

that at Gandhi Dham (Gujarat), the respondent started pressurising

the appellant for sharing bed and having physical relation with his

friends, on refusing to do so, she was beaten by her husband. In

paragraph 6 of the plaint it is stated that appellant had intimated

this to her in laws, but they were not helpful and scolded her saying

wife has to obey her husband. It is further stated in paragraph no.8

that she lived at Gandhi Dham till 7.11.2010 and, thereafter, she

returned with her brother to her maternal home at Jhansi.

5.The said case was contested by the defendant/respondent

by filing his written statement and in the additional pleas, it was

stated that the appellant did not want to live at Gandhi Dham and

was forcing the respondent to live at Jhansi. It was further averred

that appellant and her two brothers are not in control of her

maternal uncle and aunt. It is further stated that appellant would

quarrel and fight for petty things and she was not interested in

doing domestic work and she did not want to live along with family

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members of the respondent and was always pressurizing him to

live separately. It has also been contended that she had been

pressurizing the respondent for claiming his share in the family

property, consequence of which the parents of the respondent

after, giving his share had snapped ties with the respondent and

the appellant. It was further stated that the appellant was having

extra marital relation with her brother-in-law (Jija).

6.The defendant/respondent filed Case No.94 of 2011 under

Section 9 of the Hindu Marriage Act, for restitution of conjugal

rights before the Additional Senior Civil Judge at Gandhi Dham. In

the said case, he made the same allegation that appellant

displayed strange behaviour after returning from her parental

house. The said case, after being transferred from Gandhi Dham to

the Court of Principal Judge, Family Court at Jhansi was contested

by the appellant who filed her written statement denying the said

facts and reiterated the case set up by her in her case under

Section 13 of the Hindu Marriage Act in the additional pleas.

7.As in both the cases, the parties were same, as such the

Principal Judge, Family Court proceeded to decide the same

together and following issues were framed :-

“1& D;k ;kph Jherh eksfudk xqIrk dks foi{kh ftrsUnz xa/kh ls vyx jgus dk ;qfDr ;qDr

,oa vkSfpR;iw.kZ vk/kkj gS\

2&D;k ;kph Jherh eksfudk xqIrk viuh ;kfpdk esa of.kZr rF;ksa ds vk/kkj ij

foi{kh ftrsUnz xa/kh ls fookg foPNsn dh vkKfIr izkIr dh vf/kdkfj.kh gS\”

8.The Court below, thereafter considering the oral and

documentary evidence proceeded to hold that appellant has failed

to prove her case for cruelty, nor she could prove her case beyond

doubt as far as the allegation of sharing bed and making physical

relation with other men, the Court below dismissed the case of the

appellant under Section 13 of the Hindu Marriage Act and allowed

the application of the defendant/respondent under Section 9 for the

restitution of conjugal rights. Against the order dated 18.1.2016

passed by the Principal Judge, Family Court, Jhansi two appeals,

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First Appeal No.60 2016 filed by the appellant against the order

under Section 9 of the Hindu Marriage Act and First Appeal No.61

of 2016 has been preferred against the dismissal of the case under

Section 13 of the Hindu Marriage Act.

9.Both the appeals are being heard and decided together as

the same arises out of common order of the Court below. This

Court before hearing the case on merits had made an effort for

reconciliation between the parties on 25.4.2019, but the effort for

reconciliation failed.

10.From the pleadings of the parties and from the perusal of the

records of the Court below, the question which emerges for

consideration is,

(i) whether the appellant is entitled to a decree of divorce on

the ground of cruelty.

(ii)Whether there is an irretrievable break down of marriage

between the parties.

11.It is contended by the appellant that court below while

dealing with the issue failed to record just, cogent and reasonable

finding disbelieving the fact of allegation made by the appellant as

far as that she was pressurized by defendant/respondent to share

bed with friends and colleagues. The Court below should have

visualized that lady like appellant whose parents had passed away

in her childhood and was brought up by her maternal uncle and

aunt and she having no source of livelihood would not make such

allegations against her husband which could land her in a

dangerous zone unless and until the circumstances compelled her

to do so and the Principal Judge, Family Court should not have

taken her allegations made in the plaint so lightly and disbelieve for

want of any specific evidence. Further the allegations made by the

respondent in the additional pleas of the written statement filed in

proceedings under Section 13, as well as in petition under Section

9 of the Hindu Marriage Act that appellant was having an illicit

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relationship with her brother in law also amounted to mental as well

as legal cruelty.

12.It has also been argued that the Court below had not

recorded any finding in respect of specific pleadings as well as

testimony put forward and the court below while coming to the

conclusion that no mental cruelty has been established by the

appellant, as such was not entitled to a decree of divorce.

13.Sri Gulab Chand, counsel appearing for the husband

submitted that the appellant failed to prove cruelty, as alleged by

her and the trial court was correct in dismissing her case for

divorce. It was submitted that appellant was a highly qualified lady

and she had ample opportunity to make complaint directly or

through electronic process/message, but she did not availed the

same and there was no evidence on record to establish the charge

of cruelty. It was further contended that defendant (husband) had

got examined the landlord before the court below who adduced

that the appellant was never subjected to any cruelty at hands of

the respondent-husband.

14.Sri Gulab Chand, counsel for the respondent vehemently

argued that this Court has got no jurisdiction to grant a decree of

divorce on the ground of irretrievable break down of marriage, as

Section 13(1)of the Hindu Marriage Act does not mandate, as a

ground for annulling the marriage. He relied upon two judgments of

the Apex Court in the case of Vishnu Dutt Sharma vs. Manju

Sharma, 2009(6) SCC 379 and Darshan Gupta vs. Radhika

Gupta, 2013 (9) SCC 1 wherein the Apex Court has held that

irretrievable break down of marriage is not a ground for divorce

under the Hindu Marriage Act.

15.Further reliance was placed upon the provisions of sub-

Section (1) (i-b) of Section 13 of the Hindu Marriage Act 1955

whereby petition for divorce could not be presented unless two

years have passed since either of the parties has deserted.

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16.We have heard Sri Jitendra Kumar Chakraborty and Sri

Rajesh Khare, learned Counsel for the appellant and Sri Gulab

Chandra, learned Counsel for respondents and have perused the

records of the case.

17.In the present case, appellant had filed case under Section

13 of the Hindu Marriage Act for annulling the marriage on the

ground of cruelty. The Apex Court in depth had examined the word

“cruelty” in the case of Samar Ghosh Vs. Jaya Ghosh, 2007 (4)

SCC 511 in Paragraph nos.38, 39, 40, 41, 42 and 43 which are as

under:-

“38.Before we critically examine both the judgments in the

light of settled law, it has become imperative to understand and

comprehend the concept of cruelty.

39.The Shorter 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'.

40.The term "mental cruelty" has been defined in the Black's

Law Dictionary [8th Edition, 2004] as under:

"Mental Cruelty - 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."

41.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

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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."

42.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."

43.In the instant case, our main endeavour would be to define

broad parameters of the concept of 'mental cruelty'. Thereafter,

we would strive to determine whether the instances of mental

cruelty enumerated in this case by the appellant would

cumulatively be adequate to grant a decree of divorce on the

ground of mental cruelty according to the settled legal position as

crystallized by a number of cases of this Court and other Courts.”

18.The concept of legal cruelity has been dealt with by the

Supreme Court in case of Sirajmohmedkhan Janmohamadkhan

Vs. Hafizunnisa Yasinkhan and another, (1981) 4 SCC 250 ,

which is as under :-

“29.In Sm. Pancho v. Ram Prasad, Roy, J. while dealing with

the Hindu Married Women's Right to Separate Residence and

Maintenance Act (19 of 1946) expounded the concept of 'legal

cruelty' and observed thus:

"In advancement of a remedial statute, everything is to

be done that can be done consistently with a proper

construction of it even though it may be necessary to

extend enacting words beyond their natural import and

effect.

Conception of legal cruelty undergoes changes

according to the changes and advance of social

concept and standards of living. With the advancement

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.”

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19.Supreme Court in case of V. Bhagat Vs. D. Bhagat, (1994)

1 SCC 337 in Para 16, while dealing with mental cruelty held 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 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. ”

20.Further the Apex Court in case of Dr. N.G. Dastane Vs. Mrs.

S. Dastane, (1975) 2 SCC 326 Para 30 has observed as under :-

“30.An awareness of foreign decisions could be a useful

asset in interpreting our own laws. But it has to be remembered

that we have to interpret in this case a specific provision of a

specific enactment, namely, section 10(1) (b) of the Act. What

constitutes cruelty must depend upon the terms of this statute

which provides :

"10(1) Either party to a marriage, whether

solemnized before or after the commencement of this

Act, may present a petition to the district court

praying for a decree for judicial separation on the

ground that the other party-

(b) has treated the petitioner with such cruelty as to

cause areasonable apprehension in the mind of the

petitioner that it will be harmful or injurious for the

petitioner to live with the other party;"

The inquiry therefore has to be whether the conduct charged a,.-

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. It is not necessary,

as under the English law, that the cruelty must be of such a

character as to cause "danger" to life, limb or health or as to give

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rise to a reasonable apprehension of such a danger. Clearly,

danger to life, limb or health or a reasonable apprehension of it

is a higher requirement than a reasonable apprehension that it is

harmful or injurious for one spouse to live with the other.”

21.In Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2

SCC 73, the Apex Court while dealing with cruelty in Para 6 held

as under :-

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

under Section 13(1)(ia) 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 shows 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.”

22.In A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22 in

Paragraph nos.10, 12 and 13, the Apex Court held as under :-

“10.The expression "cruelty" has not been defined in the Act.

Cruelty can be physical or mental. Cruelty which is a ground for

dissolution of marriage may be defined as willful and unjustifiable

conduct of such character as to cause danger to life, limb or

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

apprehension of such a danger. The question of mental cruelty

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

particular society to which the parties belong, their social values,

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status, environment in which they live. Cruelty, as noted above,

includes mental cruelty, which falls within the purview of a

matrimonial wrong. Cruelty need not be physical. If from the

conduct of his spouse same is established and/or an inference

can be legitimately drawn that the treatment of the spouse is

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

spouse, about his or her mental welfare then this conduct

amounts to cruelty. In delicate human relationship like matrimony,

one has to see the probabilities of the case. The concept, a proof

beyond the shadow of doubt, is to be applied to criminal trials

and not to civil matters and certainly not to matters of such

delicate personal relationship as those of husband and wife.

Therefore, one has to see what are the probabilities in a case

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

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

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

physical or corporeal or may be mental. In physical cruelty, there

can be tangible and direct evidence, but in the case of mental

cruelty there may not at the same time be direct evidence. In

cases where there is no direct evidence, Courts are required to

probe into the mental process and mental effect of incidents that

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

consider the evidence in matrimonial disputes.

12.To constitute cruelty, the conduct complained of should be

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

petitioner spouse cannot be reasonably expected to live with the

other spouse. It must be something more serious than "ordinary

wear and tear of married life". The conduct, taking into

consideration the circumstances and background has to be

examined to reach the conclusion whether the conduct

complained of amounts to cruelty in the matrimonial law. Conduct

has to be considered, as noted above, in the background of

several factors such as social status of parties, their education,

physical and mental conditions, customs and traditions. It is

difficult to lay down a precise definition or to give exhaustive

description of the circumstances, which would constitute cruelty.

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

that the relationship between the parties had deteriorated to such

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

impossible for them to live together without mental agony, torture

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

Physical violence is not absolutely essential to constitute cruelty

and a consistent course of conduct inflicting immeasurable

mental agony and torture may well constitute cruelty within the

meaning of Section 10 of the Act. Mental cruelty may consist of

verbal abuses and insults by using filthy and abusive language

leading to constant disturbance of mental peace of the other

party.

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

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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.”

23.Further the Apex Court in case of Samar Ghosh (supra)

laid down the guidelines to enumerate some instances of human

behaviour which may be relevant in dealing with the case of

'mental cruelty', paragraph no.101 of the judgment is extracted

herein 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 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

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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 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 (xiii) Unilateral decision of

either husband or wife after marriage not to have child from the

marriage may amount to 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. 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.”

decision of either husband or wife after marriage not to have child

from the marriage may amount to cruelty.

24.Section 13 of the Hindu Marriage Act, 1955 provides for

grounds on which petition can be presented for divorce. Cruelty is

one of the ground on which, a petition for divorce can be filed, but

where there is irretrievable breakdown of marriage, no petition can

be filed. The Law Commission of India in its 71

st

report titled “The

Hindu Marriage Act, 1955 - Irretrievable Break Down Of

Marriage as a Ground of Divorce” recommended amendments in

the Hindu Marriage Act as a new ground for granting divorce

among the Hindus. But the recommendation of the Law

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Commission of India was not accepted.

25.The Supreme Court in case of Naveen Kohli Vs. Neelu

Kohli, 2006 (4) SCC 558, while considering the concept of

irretrievable breakdown of marriage held as under:-

“80.Since there is no acceptable way in which a spouse can

be compelled to resume life with the consort, nothing is gained

by trying to keep the parties tied for ever to a marriage that in fact

has ceased to exist.

81.Some jurists have also expressed their apprehension for

introduction of irretrievable breakdown of marriage as a ground

for grant of the decree of divorce. In their opinion, such an

amendment in the Act would put human ingenuity at a premium

and throw wide open the doors to litigation, and will create more

problems then are sought to be solved.

82.The other majority view, which is shared by most jurists,

according to the Law Commission Report, is that human life has

a short span and situations causing misery cannot be allowed to

continue indefinitely. A halt has to be called at some stage. Law

cannot turn a blind eye to such situations, nor can it decline to

give adequate response to the necessities arising therefrom.

88.Even at this stage, the respondent does not want divorce

by mutual consent. From the analysis and evaluation of the

entire evidence, it is clear that the respondent has resolved to

live in agony only to make life a miserable hell for the appellant

as well. This type of adamant and callous attitude, in the context

of the facts of this case, leaves no manner of doubt in our mind

that the respondent is bent upon treating the appellant with

mental cruelty. It is abundantly clear that the marriage between

the parties had broken down irretrievably and there is no chance

of their coming together, or living together again.

89.The High Court ought to have appreciated that there is no

acceptable way in which the parties can be compelled to

resume life with the consort, nothing is gained by trying to keep

the parties tied forever to a marriage that in fact has ceased to

exist.

90.Undoubtedly, it is the obligation of the Court and all

concerned that the marriage status should, as far as possible,

as long as possible and whenever possible, be maintained, but

when the marriage is totally dead, in that event, nothing is

gained by trying to keep the parties tied forever to a marriage

which in fact has ceased to exist. In the instant case, there has

been total disappearance of emotional substratum in the

marriage. The course which has been adopted by the High

Court would encourage continuous bickering, perpetual

bitterness and may lead to immorality. ”

26.Earlier in case of Samar Ghosh (supra), the Supreme Court

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referred to 71

st

report of the Law Commission of India on

“Irretrievable breakdown of marriage” with approval as follows:-

“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 7th April,

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 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

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

15

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 fagade, 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.”

27.The Supreme Court in case of Ms. Jorden Diengdeh Vs.

S.S. Chopra, AIR 1985 SC 935 held as under :-

“It appears to be necessary to introduce irretrievable breakdown

of marriage and mutual consent as grounds of divorce in all

cases..... We suggest that the time has come for the

intervention of the legislature in those matters to provide for a

uniform code of marriage and divorce and to provide by law for

a way out of the unhappy situation in which couples like the

present have found themselves.”

28.Further the Apex Court in case of V. Bhagat (supra) held as

under :-

“Irretrievable breakdown of the marriage is not a ground for

divorce by itself. But while scrutinizing the evidence on record to

determine whether the ground(s) alleged is made out and in

determining the relief to be granted, the said circumstance can

certainly be borne in mind.”

29.However, in case of Geeta Mullick v. Brojo Gopal Mullick,

IR 2003 Calcutta 331, the High Court held as under :-

“In our considered opinion, the marriage between the parties can

not be dissolved by the trial Court or even by the High Court only

16

on the ground of marriage having been irretrievably broken

down, in the absence of one or more grounds as contemplated

under section 13(1) of the Hindu Marriage Act,1955.”

30.Similarly, in case of Tapan Kumar Chakraborty V.s

Jyotsna Chakraborty, AIR 1997 Calcutta 134, the Calcutta High

Court held that in a petition for divorce on a ground as mentioned

in the Hindu Marriage Act or the Special Marriage Act, Court

cannot grant divorce on the mere ground of irretrievable

breakdown of marriage.

31.However, the Apex Court in case of Savitri Pandey (supra)

held as under :-

“that marriage between the parties cannot be dissolved only on

the averments made by one of the parties that as the marriage

between them has broken down, no useful purpose would be

served to keep it alive. The legislature, in its wisdom, despite

observation of the Supreme Court has not thought it proper to

provide for dissolution of the marriage on such averments. There

may be cases where it is found that as the marriage has become

dead on account of contributory acts of commission and

omission of the parties, no useful purpose would be served by

keeping such marriage alive. The sanctity of marriage cannot be

left at the whims of one of the annoying spouses.”

32.After the judgment of Supreme Court in Naveen Kohli

(supra), the Law Commission of India in its Report No.217

submitted to the Government in March, 2009 regarding

irretrievable breakdown of marriage-another ground for divorce,

was of the view that:-

“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 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

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 counter-productive to the

institution of marriage. The Courts do not have to deal with ideal

husbands and ideal wives. It has to deal with particular man and

woman before it.

17

33.The Law Commission was of the view that :-

“2.1 A law of divorce based mainly on fault is inadequate to deal

with a broken marriage. Under the fault theory, guilt has to be

proved; divorce Courts are presented with concrete instances of

human behaviour as bring the institution of marriage into

disrepute. Once the marriage has broken down beyond repair, it

would be unrealistic for the law not to take notice of that fact,

and it would be harmful to society and injurious to the interest of

the parties. Where there has been a long period of continuous

separation, it may fairly be surmised that the matrimonial bond

is beyond repair. The marriage becomes a fiction, though

supported by a legal tie, by refusing to sever that tie, the law in

such cases does not serve the sanctity of marriage; on the

contrary, it shows scant regard for the feelings and emotions of

the parties. Public interest demands not only that the married

status should, as long as possible, and whenever possible, be

maintained, but where a marriage has been wrecked beyond

the hope of salvage, public interest lies in the recognition of that

fact. Since there is no acceptable way in which a spouse can be

compelled to resume life with the consort, nothing is gained by

trying to keep the parties tied for ever to a marriage that in fact

has ceased to exist. Human life has a short span and situations

causing misery cannot be allowed to continue indefinitely. A halt

has to be called at some stage. Law cannot turn a blind eye to

such situations, nor can it decline to give adequate response to

the necessities arising therefrom.”

34.However, the Supreme Court in case of Darshan Gupta

(supra), while considering the case of Vishnu Datt Sharma (supra)

as to whether relief on the ground of irretrievable break down of

marriage is available to the appellant, held as under:

“50. At the present juncture, it is questionable as to whether the

relief sought by the learned counsel for the appellant, on the

ground of irretrievable breakdown of marriage is available to him.

The reason for us to say so, is based on a judgment rendered by

this Court in Vishnu Dutt Sharma vs. Manju Sharma, (2009) 6

SCC 379, wherein this Court has held as under:-

“10. On a bare reading of Section 13 of the Act, reproduced

above, it is

crystal clear that no such ground of irretrievable breakdown

of the marriage is provided by the legislature for granting a

decree of divorce. This Court cannot add such a ground to

Section 13 of the Act as that would be amending the Act,

which is a function of the legislature.

18

11. Learned Counsel for the appellant has stated that this

Court in some

cases has dissolved a marriage on the ground of

irretrievable breakdown. In our opinion, those cases have

not taken into consideration the legal position which we

have mentioned above, and hence they are not precedents.

A mere direction of the Court without considering the legal

position is not a precedent.

12.If we grant divorce on the ground of irretrievable

breakdown, then we shall by judicial verdict be adding a

clause to Section 13 of the Act to the effect that irretrievable

breakdown of the marriage is also a ground for divorce. In

our opinion, this can only be done by the legislature and not

by the Court. It is for the Parliament to enact or amend the

law and not for the Courts. Hence, we do not find force in

the submission of the learned Counsel for the appellant.

13.Had both parties been willing we could, of course,

have granted a

divorce by mutual consent as contemplated by Section 13-B

of the Act, but in this case the respondent is not willing to

agree to a divorce.”

35.Thus, the Apex Court had constantly directed for the

amendment in the Hindu Marriage Act, for introducing irretrievable

break down of marriage, as one of the grounds for divorce.

However, the Law Commission has twice in its 71

st

report and,

thereafter, in report No.217 has recommended for the inclusion of

irretrievable break down of marriage, as one of the grounds for

divorce. The Apex Court, however, in those cases where it found

that mental cruelty existed on the part of one of the spouses, it

granted divorce taking into consideration that the marriage cannot

continue as it has irretrievably broken down, while it refused to

grant divorce in those cases, which were simply based on the

ground of irretrievable break down of marriage.

36.In the present case, divorce has been sought on the ground

19

of cruelty by appellant, making serious allegations against the

respondent-husband for demand of dowry and sharing bed with his

friends and colleagues. In the additional pleas of written statement,

defendant-respondent had made counter allegations as regards

the character of appellant, having illicit relationship with her

brother-in-law (Jija). These allegations, so made, qualifies under

the term mental as well as legal cruelty.

37.The appellant in her cross-examination before the court

below had clearly stated that the respondent-husband was forcing

her to share bed with his friends and colleagues. Her statement

was also supported by PW-2, Ram Kumar Gupta, who also in his

cross-examination had stated that the appellant had told her that

the respondent was forcing her to share bed with other persons.

The Court below wrongly repelled and discarded the oral testimony

of the appellant and held that she failed to produce material to

substantiate her claim.

38.The allegation made by the appellant against her husband

are so grave in nature which cannot be proved by evidence nor it

can be expected from a lady to make such allegation against her

husband after such a short span of marriage, being fully aware of

the fact that she has been brought up by her maternal uncle and

aunt after her parents passed away at an early age, and she being

not employed and earning any money.

39.The Court below completely lost sight of the fact that the

respondent-husband had made wild allegations not only in the

written statement filed by him in proceedings under Section 13, but

also in proceedings under Section 9 of the Act. As there are

allegations and counter allegations from both the sides, no decree

under Section 9 could have been passed.

40.The Court below also lost sight of the fact that the appellant

who was for the first time taken by her husband to Gandhi Dham,

Gujarat was living in rented accommodation on the first floor, and it

cannot be expected from the appellant who was not familiar with

20

the new place to have reported the matter to landlord or

neighbours or to have made complaint to police, except to have

told her misery to her maternal uncle, aunt and her brothers, which

she did.

41.Another aspect which required consideration was, as to why

a newly wedded lady immediately after few months of her marriage

will leave her husband's house and make such serious allegations

and refuse to go back. Further effort made for reconciliation, also

failed. Before passing the judgment impugned a thought should

have been given to the misery of the lady who refused to return to

her husband's home. Matrimonial proceedings cannot be simply

decided on the basis of mere evidence on record, sometimes the

Court while examining and scrutinizing the case has to decide on

the circumstances which led to the filing of the case, as in the

present case, the allegation made in matrimonial case cannot be

proved by the wife by any evidence except her testimony.

42.It is true that in Section 13 of the Act, irretrievable breakdown

of marriage is not a ground for dissolution of marriage, but the

Apex Court has held the decree of divorce on the ground that the

marriage has irretrievably broken down can be granted in those

cases where both the parties have levelled such allegations

against each other that the marriage appears to be practically dead

and the parties cannot live together.

43.In the present case, the divorce claimed by the appellant is

on the ground of cruelty, it is both mental and physical, the

appellant has been subjected to mental cruelty by the respondent-

husband pressurising and coercing her to do such act which

cannot be justified and expected from any husband. Further the

appellant and respondent are living separately since 7.11.2010 i.e.

for about 9 years, while the married life existed for a brief period.

44.The Court below in most cryptic and arbitrary manner

decided the divorce petition without recording any finding holding

that appellant has failed to prove her case, as no evidence was

21

adduced by her in support of the allegations made in the divorce

petition, while by the same judgment petition under Section 9 of the

husband was allowed. No finding has been recorded as to mental

cruelty, suffered by the appellant, as the averment of the petition

and testimony had been discarded.

45.In Samar Ghosh (supra), the Apex Court had laid guidelines

to enumerate some instances of human behaviour, which may be

relevant in dealing with the case of mental cruelty. As from reading

of the claims and counter claims of the parties in their petition and

written statement, one thing clearly emerges that both the parties

have made serious charges against each other, especially in

regard to the character. Considering the averments so made by the

parties, it can safely be said that the action of the respondent-

husband specially in forcing the appellant to share bed with his

friends and colleagues, and also making allegation by husband

against the appellant, having illicit relationship with her brother-in-

law amounts to mental cruelty as enumerated in some of the

instances in the guidelines.

46.It is not in dispute that both the parties are living separately

for the last nine years and despite the efforts of the Trial Court as

well as this Court reconciliation failed. Thus, as the appellant has

been subjected to mental cruelty, which is one of the ground for

divorce under Section 13 as well as keeping in mind the fact that

the marriage between the parties has broken down. No useful

purpose would be served to keep it alive, as observed by the Apex

Court in case of Savitri Pandey (supra) “the sanctity of marriage

cannot be lived at the whims one of the annoying spouses”.

47.Argument of the counsel for respondent-husband, that this

Court does not have any jurisdiction to grant decree of divorce on

the ground of irretrievable break down of marriage under Section

13 has no force, as the appellant had filed petition for divorce on

the ground of cruelty and the Apex Court while dealing in case of

Vishnu Datt Sharma (supra) and Darshan Gupta (supra) had held

22

that irretrievable break down of marriage is not a ground under

Section 13, but the Apex Court in case of Samar Ghosh (supra)

and Naveen Kohli (supra) while dealing with the similar situation in

which divorce was sought on the ground of mental cruelty. The

Court went further and held that where one of the parties, who was

subjected to mental cruelty and the marriage cannot be sustained

any more having been broken down, came up with the concept of

irretrievable break down of marriage. In the present case also the

appellant, who has been subjected to mental cruelty by the

respondent-husband is also entitled for a decree of divorce as her

marriage has completely broken down and no chance of survival

remains.

48.As far as the second objection of the counsel for the

respondent-husband, that sub-Section (1) (i-b) of Section 13 of the

Act debars the parties from presenting petition within two years in

case of desertion, but in the present case, the appellant had

moved the petition seeking annulment of marriage on the ground of

mental cruelty. The argument made has no force and the said

provision is not applicable in the present case.

49.Thus there is no use of keeping the appellant and the

respondent tied by matrimonial relationship when they cannot live

peacefully, since parties are living separately after marriage,

appellant has lived for a few months in her matrimonial house, she

having made allegation of cruelty and desertion against husband

and husband having made counter allegations against her the

marriage has irretrievably broken down.

50.As, no application for permanent alimony has been filed by

the appellant, nor any oral prayer was made during the course of

argument, or at the time of reconciliation held in Chamber, the

appellant is not granted any permanent alimony from the

respondent.

51.In the interest of justice, the judgment dated 18.1.2016 and

decree dated 30.1.2016 are set aside and Case No.205 of 2011

23

filed by appellant, under Section 13 of the Hindu Marriage Act is

decreed and the marriage between the parties stand annulled, and

Case No.94 of 2011 filed by the respondent under Section 9 of the

Hindu Marriage Act for restitution of conjugal rights is dismissed.

52.Both the appeals stand allowed.

Order Date :-6.8.2019

S. Singh