Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.7114-7115 OF 2014

Suman Singh ….Appellant(s)

VERSUS

Sanjay Singh …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1)These appeals are filed by the appellant (wife)

against the final judgment and order dated

23.05.2013 passed by the High Court of Delhi at

New Delhi in F.A.O. No.108 of 2013 and F.A.O.

No.109 of 2013 by which the High Court dismissed

the appeals filed by the appellant and confirmed the

judgment dated 14.12.2010 of the Principal Judge,

Family Courts, Rohini which had granted decree for

dissolution of marriage in favour of the respondent

(husband) and, in consequence, also affirmed the

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Page 2 order dismissing the petition filed by the appellant

(wife) for restitution of conjugal rights.

2)Facts, in brief, to appreciate the controversy

involved in the appeals need mention infra.

3)The marriage between the appellant and the

respondent was solemnized on 26.02.1999 at Delhi

as per the Hindu rites. The respondent-husband is

working as "Caretaker" in the Government of NCT of

Delhi whereas the appellant is a housewife. Out of

this wedlock, one daughter was born on 15.06.2002

and the second daughter was born on 10.02.2006.

Both daughters are living with the appellant.

4)On 11.07.2010, the respondent (husband) filed

a petition for dissolution of marriage under Section

13 of the Hindu Marriage Act, 1955 (hereinafter

referred to as "The Act”) in the Family Courts,

Rohini, Delhi against the appellant (wife). The

respondent sought decree for dissolution of

marriage essentially on the ground of "cruelty”.

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Page 3 5)In substance, the respondent, in his petition,

pleaded 9 instances which, according to him,

constituted "cruelty” within the meaning of Section

13(1)(i-a) of the Act entitling him to claim

dissolution of marriage against the appellant.

6)The first ground of cruelty was related to wife's

behavior on the next day of marriage, i.e.,

27.02.1999. It was alleged that the appellant came

out of the bedroom in night dress and that too late

when the close relatives of the respondent were

sitting in the house. It was alleged that she did not

pay respect and wishes to the elders. (Para 9 of the

plaint)

7)The second ground of cruelty was again about

the appellant's behavior with the respondent on the

eve of New Year. However, the year was not

mentioned. According to the respondent, he agreed

to celebrate the new year with the appellant on her

parental house as the parents of the appellant gave

repeated calls. After reaching her parental house,

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Page 4 most of the time the appellant was busy with her

family members and left him alone in the drawing

room. Even at the time of dinner, the family

members of the appellant did not behave properly.

(Para 10).

8)The third ground of cruelty was that the

appellant did not show any inclination or

enthusiasm to attend any important family function

or festivals at the respondent’s house whenever

held. However, no details were given about the date

and the function held. The allegations are general

in nature (Para 11).

9)The fourth ground of cruelty was again about

the indecent behavior of the appellant towards the

respondent’s family members. However, no details

were pleaded except making general averments

(Para 12).

10)The fifth ground of cruelty was in relation to

an incident which, according to the respondent,

occurred in July 1999. It was alleged that the

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Page 5 appellant, on that day, insisted that the couple

should live separately from the respondent's parents

(Para 13).

11)The sixth ground of cruelty was again general

with no details. It was alleged that the appellant

was not interested in doing any household work nor

was interested in preparing meals and used to insist

the respondent to have his lunch from outside.

(Para 14).

12)The seventh ground of cruelty was in relation

to one incident which, according to the respondent,

occurred on Diwali day in the year 2000. It was

again about the behavior of the appellant with the

family members of the respondent which, according

to the respondent, was rude (Para 16).

13)The eighth ground of cruelty was in relation to

one isolated incident which, according to the

respondent, occurred on 15.04.2001. It was again

about the behavior of the appellant with the friends

of the respondent who had come to the respondent's

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Page 6 house. According to the respondent, the family

members did not like it (Para 17).

14)The ninth ground of cruelty was that one day

in year 2010, the appellant visited the respondent's

office and misbehaved with the respondent in the

presence of other officials (Para 27).

15)The respondent also alleged some instances in

the petition. They, however, again essentially relate

to the appellant’s behaviour with the respondent

and his family members.

16)The appellant filed her written statement and

denied these allegations. The appellant also applied

for restitution of conjugal rights against the

respondent in the same proceedings by filing

petition under Section 9 of the Act and inter alia

alleged in her petition that it was the respondent

who has withdrawn from her company without

there being a reasonable cause. She also while

denying the case set up by the respondent justified

her case for restitution of conjugal rights.

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Page 7 17)The Trial Court framed the following issues on

the basis of pleadings in the case:

1. Whether after solemnization of

marriage, the Respondent has treated the

Petitioner with cruelty? OPP

2. Whether the Petitioner is entitled to

the decree of divorce as prayed? OPP

3.Relief

The following issues were framed based on the

pleadings in the petition under Section 9 of the Act:

1.Whether the Petitioner is entitled to

the restitution of conjugal rights as prayed?

OPP

2.Relief

18)Parties adduced the evidence. By order dated

14.12.2012, the Family Court allowed the petition

filed by the respondent. It was held that the

grounds alleged by the respondent amounted to

mental cruelty within the meaning of Section 13(1)

(ia) of the Act and the same having been proved by

the respondent, he was entitled to claim a decree for

dissolution of marriage against the appellant.

Accordingly, the Trial Court granted decree for

dissolution of marriage in favour of the respondent

and dissolved the marriage. Since the decree for

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Page 8 dissolution of marriage was passed against the

appellant, the petition filed by the appellant against

the respondent seeking restitution of conjugal rights

was dismissed.

19)The appellant, felt aggrieved by the aforesaid

order, filed first appeals before the High Court. In

appeals, the question was whether the Trial Court

was justified in granting decree for dissolution of

marriage to the respondent (husband) and, in

consequence, was justified in dismissing the

petition for restitution of conjugal rights filed by the

appellant (wife).

20)By impugned judgment, the High Court

dismissed the appeals and affirmed the

judgment/decree of the Trial Court. The appellant

(wife), felt aggrieved, has filed these appeals by

special leave against the judgment of the High

Court.

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Page 9 21)Heard Mr. D.N. Goburdhan, learned counsel

for the appellant and Mr. Gaurav Goel, learned

counsel for the respondent.

22)Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeals and while setting

aside the impugned order, dismiss the divorce

petition filed by the respondent(husband) against

the appellant and, in consequence, allow the

petition filed by the appellant(wife) for restitution of

conjugal rights against the respondent (husband).

23)The word "cruelty” used in Section 13(1)(ia) of

the Act is not defined under the Act. However, this

expression was the subject matter of interpretation

in several cases of this Court. What amounts to

“mental cruelty” was succinctly explained by this

Court (three Judge Bench) in Samar Ghosh vs.

Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships

speaking through Justice Dalveer Bhandari

observed that no uniform standard can ever be laid

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Page 10 down for guidance, yet it is appropriate to

enumerate some instances of human behavior

which may be considered relevant in dealing with

the cases of “mental cruelty”.

24)Their Lordships then broadly enumerated 16

category of cases which are considered relevant

while examining the question as to whether the

facts alleged and proved constitute “mental cruelty”

so as to attract the provisions of Section 13 (1) (ia)

of the Act for granting decree of divorce.

25)Keeping in view the law laid down in Samar

Ghosh’s case (supra), when we examine the

grounds taken by the respondent in his petition for

proving the mental cruelty for grant of divorce

against the appellant, we find that none of the

grounds satisfies either individually or collectively

the test laid down in Samar Ghosh’s case (supra) so

as to entitle the respondent to claim a decree of

divorce.

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Page 11 26)This we hold for more than one reason. First,

almost all the grounds taken by the respondent in

his petition were stale or/and isolated and did not

subsist to enable the respondent to seek a decree

for dissolution of marriage. In other words, the

incidents of cruelty alleged had taken place even,

according to the respondent, immediately after

marriage. They were solitary incidents relating to

the behavior of the appellant. Second, assuming

that one or more grounds constituted an act of

cruelty, yet we find that the acts complained of were

condoned by the parties due to their subsequent

conduct inasmuch as admittedly both lived together

till 2006 and the appellant gave birth to their

second daughter in 2006. Third, most of the

incidents of alleged cruelty pertained to the period

prior to 2006 and some were alleged to have

occurred after 2006. Those pertained to period after

2006 were founded on general allegations with no

details pleaded such as when such incident

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Page 12 occurred (year, month, date etc.), what was its

background, who witnessed, what the appellant

actually said etc.

27)In our view, the incidents which occurred prior

to 2006 could not be relied on to prove the

instances of cruelty because they were deemed to

have been condoned by the acts of the parties. So

far as the instances alleged after 2006 were

concerned, they being isolated instances, did not

constitute an act of cruelty.

28)A petition seeking divorce on some isolated

incidents alleged to have occurred 8-10 years prior

to filing of the date of petition cannot furnish a

subsisting cause of action to seek divorce after 10

years or so of occurrence of such incidents. The

incidents alleged should be of recurring nature or

continuing one and they should be in near

proximity with the filing of the petition.

29)Few isolated incidents of long past and that too

found to have been condoned due to compromising

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Page 13 behavior of the parties cannot constitute an act of

cruelty within the meaning of Section 13 (1)(ia)of the

Act.

30)In our considered opinion, both the Courts

below failed to take note of this material aspect of

the case and thus committed jurisdictional error in

passing a decree for dissolution of marriage.

31)We cannot, therefore, countenance the

approach of the High Court because it did not, in

the first instance, examine the grounds taken in the

petition to find out as to whether such grounds

constitute mental cruelty or not? The finding,

therefore, though concurrent does not bind this

Court.

32)We are not impressed by the submission of the

learned counsel for the respondent that an incident

which occurred somewhere in 2010 when the

appellant visited the office of the respondent and

alleged to have misbehaved with the respondent in

front of other officers would constitute an act of

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Page 14 cruelty on the part of the appellant so as to enable

the respondent to claim divorce. In the first place,

no decree for divorce on one isolated incident can be

passed. Secondly, there could be myriad reasons for

causing such isolated incident. Merely because both

exchanged some verbal conversation in presence of

others would not be enough to constitute an act of

cruelty unless it is further supported by some

incidents of alike nature. It was not so.

33)We are also not impressed by the submission

of the learned counsel for the respondent that since

the appellant had made allegation against the

respondent of his having extra-marital relation and

hence such allegation would also constitute an act

of cruelty on the part of the appellant entitling the

respondent to claim decree for dissolution of

marriage.

34)Similarly, we are also not impressed by the

submission of learned counsel for the respondent

that since both have been living separately for quite

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Page 15 some time and hence this may be considered a good

ground to give divorce.

35)In the first place, the respondent did not seek

a decree of dissolution of marriage on these

grounds. Second, the grounds of cruelty taken by

the respondent in his petition does not include

these grounds. Third, even if some stray allegations

were made by the wife in her pleading/evidence as

were relied upon by the learned counsel are of no

relevance because, as mentioned above, these

ground were not pleaded in the petition by the

respondent for seeking a decree of divorce and nor

were put in issue; and lastly, the burden being on

the respondent, the same could be discharged by

the respondent by pleading and then proving. It was

not so done. It is for these reasons, we cannot

accept the aforementioned two submissions for

affirming the decree of divorce.

36)This takes us to the next question as to

whether the appellant was able to make out any

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Page 16 case for restitution of conjugal rights against the

respondent.

37)Having perused her petition and evidence, we

are of the view that the appellant is entitled for a

decree for restitution of conjugal rights against the

respondent.

38)In our considered view, as it appears to us

from perusal of the evidence that it is the

respondent who withdrew from the appellant's

company without there being any reasonable cause

to do so. Now that we have held on facts that the

respondent failed to make out any case of cruelty

against the appellant, it is clear to us that it was the

respondent who withdrew from the company of the

appellant without reasonable cause and not the vice

versa.

39)In view of foregoing discussion, the appeals

succeed and are allowed. The impugned judgment is

set aside. As a result, the petition filed by the

respondent (husband) under Section 13(1) of the Act

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Page 17 seeking dissolution of marriage is dismissed. As a

consequence thereof, the marriage between the

parties is held to subsist whereas the petition filed

by the appellant against the respondent under

Section 9 of the Act seeking restitution of conjugal

right is allowed. A decree for restitution of conjugal

right is, accordingly, passed against the respondent.

40)We hope and trust that the parties would now

realize their duties and obligations against each

other as also would realize their joint obligations as

mother and father towards their grown up

daughters. Both should, therefore, give quite burial

to their past deeds/acts and bitter experiences and

start living together and see that their daughters are

well settled in their respective lives. Such reunion,

we feel, would be in the interest of all family

members in the long run and will bring peace,

harmony and happiness. We find that the

respondent is working as a " Caretaker" in the

Government Department (see Para 4 of his petition).

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Page 18 He must, therefore, be the "Caretaker" of his own

family that being his first obligation and at the same

time attend to his Government duties to maintain

his family.

………...................................J.

[R.K. AGRAWAL]

….……..................................J.

[ABHAY MANOHAR SAPRE]

New Delhi;

March 08, 2017

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