1

(A.F.R.)

Court No. - 34

Case :- FIRST APPEAL No. - 327 of 2017

Appellant :- Surendra Pratap Singh

Respondent :- Dr. Vishwaraj Singh

Counsel for Appellant :- Ganesh Shanker Srivastava

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajeev Misra,J.

1.Heard Sri Ganesh Shanker Srivastava, learned counsel for

appellant. None has appeared on behalf of respondent though vide

order dated 01.05.2017, notice was issued to sole respondent. Vide

order dated 12.07.2018, service was deemed sufficient. Hence, we

proceed to hear and decide this appeal exparte.

2.This is plaintiff's appeal under Section 19(1) of Family Court

Act, 1984 (hereinafter referred to as “Act, 1984”) arisen from

judgement dated 22.03.2017 and decree dated 07.04.2017 passed by

Smt. Shaily Rai, Additional Principal Judge/Additional District and

Sessions Judge/ Fast Track Court No. 1, Varanasi, dismissing

appellant's Matrimonial Petition No. 189 of 2007 filed under Section

13 of Hindu Marriage Act, 1955 (hereinafter referred to as “Act,

1955”) seeking divorce on the ground of cruelty.

3.Plaintiff-appellant instituted Matrimonial Petition No.189 of

2007, under Section 13 of Act, 1955 with a prayer that matrimonial

relations between plaintiff and defendant be revoked by granting

decree of divorce.

4.The plaint case set up by appellant vide plaint dated 10.08.2007

is that he is resident of village Amar Lok Hospital, Uska Road,

Siddharthanagar, Tappa-Dharauli, Pargana, Tehsil- Naugarh, District

Siddharthanagar while defendant-respondent is resident of Varanasi.

Marriage between parties was solemnized on 04.05.2003 according to

Hindu Rituals. Defendant after marriage came to her in-laws house

2

and started discharging her matrimonial duties and both were living

happily. Both the parties are well educated. Defendant by profession is

Doctor. Defendant's father Professor Daya Shanker Singh has

generally stayed abroad. Defendant was also born at abroad and has

stayed with her father in different countries like, South Africa,

America etc. Defendant is an expert Doctor, therefore, parties jointly

constructed Amar Lok Hospital for medical practice of defendant.

With the passage of time, understanding between the two got

disturbed since defendant has mostly lived abroad and enjoyed open

lifestyle. Misunderstanding between the two resulted in some criminal

cases also which were pending at the time of filing of matrimonial

petition. Situation has come where both the parties have lost

confidence among them and it is difficult to live together. Further on

account of criminal cases, mental stress has reached a stage where

both cannot live together under a single roof and causing mental and

physical harassment to plaintiff. Both have no nuptial relations for the

last one year. Relations of husband and wife have ceased and

defendant has also not discharged her duties as wife. It has resulted in

a hell like life to the parties. It is impossible for both to live together.

Plaintiff repeatedly asked defendant to have a mutual divorce but she

has not agreed. Cause of action arose in the first week of August, 2007

when defendant declined to cooperate for mutual divorce.

5.Matrimonial Petition was contested by defendant by filing

written statement dated 13.11.2007 who stated that it is the plaintiff

who has been harassing defendant mentally and physically

throughout. He induced defendant to marry him on the pretext that he

is a Doctor but later on, it was revealed that he was not a Doctor and,

therefore, he has cheated defendant. For construction of Amar Lok

Hospital except loan money, which was sanctioned by State Bank of

India, Siddharthanagar under Doctor Plus Scheme, entire money was

arranged and invested by defendant and plaintiff has not contributed

any single penny therefor. Allegation that foreign stay of defendant

3

has caused in marital differences is incorrect and defendant has not

harassed plaintiff in any manner and it is otherwise. Plaintiff has made

dowry demand time and again and also caused physical and mental

cruelty making her life a hell.

6.Aforesaid petition was initially filed in the Court of Civil Judge

(Senior Division), Siddharthanagar. Defendant filed a Transfer

Petition (Civil) No.142 of 2008 in Supreme Court and thereupon vide

judgement dated 03.01.2011, it was transferred to the Court of

competent jurisdiction at Varanasi.

7.For expeditious disposal of the suit, plaintiff filed Writ Petition

No.45971 of 2011 which was disposed of vide judgement dated

12.08.2011 directing Court below to decide suit expeditiously without

giving unnecessary adjournment to the parties.

8.Defendant sought amendment in written statement and sought to

insert following paras and schedule:-

^^16,-;g fd oknh cgqr gh pkykd o eqdnesckt O;fDr gS vkSj oknh vius dks

MkDVj tkfgj djrk Fkk vkSj ftlds ckor ge izfrokfnuh ds ekrk&firk o

fj'rsnkjh] oknh ds ckrksa ij iw.kZ:i ls fo'okl djds ge izfrokfnuh dh 'kknh

lkFk oknh@ ;kph eqrkfcd fgUnw /keZ'kkL= o jhfr fjokt fcjknjh ds :i;k iSlk

[kpZ djds fd;k FkkA pwafd ge izfrokfnuh ds ekrk&firk dkQh lEiUu Fks]

pqukUps mUgksaus ge izfrokfnuh dks o oknh @ ;kph dks dkQh :i;k o tsojkr o

eksVj dkj o vU; lkeku cjoDr fookg ge izfrokfnuh o ;kph dks fn;k Fkk]

vykok blds fcnk;h ds le; ge izfrokfnuh dks vyx ls dkQh vkHkw"k.k o

diM+k Hkh fn;k Fkk] ftldk fooj.k uhps fn;k x;k gSA

16ch-;g fd ckn fookg etdwj ge izfrokfnuh o ;kph @ oknh ds lEcU/k

dkQh e/kqj o vPNs Fks] pqukUps ge izfrokfnuh o ;kph @ oknh us fey djds

^^vej yksd lsokJe** etdwj ds fy, tehu Hkh dz; djds ml ij ^^vej yksd

lsokJe** etdwj dk;e fd;kA

16lh-;g fd ckn 'kknh etdwj tc ge ge izfrokfnuh dks ekywe gqvk fd

oknh @ ;kph DokfyQkbM MkDVj ugha gSa vkSj mlds ikl QthZ fMxzh gS] vkSj

mlus ge izfrokfnuh ds ekrk&firk o fj'rsnkjksa dks Hkh /kks[kk ns dj rFkk [kqn

dks MkDVj crk ge izzfrokfnuh dks /kks[kk nsdj ge izfrokfnuh ls 'kknh dj

fy;k gS] ftldh tkudkjh gksus ij oknh @ ;kph o izfrokfnuh esa eueqVko gks

4

x;k vkSj oknh @ ;kph viuh deh dks fNikus ds fy, ges'kk ge izfrokfnuh dks

ekjihV o >xM+k Qlkn djus yxk vkSj vUrksxRok ge izfrokfnuh dks ekjihV

djds tcjnLrh ?kj ls fudky fn;k vkSj ge izfrokfnuh dks tc ;kph @ oknh

us tcjnLrh ?kj ls fudkyk rc oknh @ ;kph us ge izfrokfnuh etdwj dk

lHkh vkHkw"k.k o diM+k oxSjg tks fd ge izfrokfnuh dks ge izfroknuh ds

ekrk&firk us fookg ds oDr fn;k Fkk lHkh oL=kHkw"k.k vius ikl j[k fy;k vkSj

og vkt Hkh ;kph @ oknh ds ikl gSaA

16Mh-;g fd ge izfrokfnuh us tc oknh@ ;kph ls mDr vkHkw"k.k oxSjg tks

ojoDr fookg ge izfrokfnuh ds ekrk&firk us tks ge izfrokfnuh dks fn;k Fkk]

mls ekaxk rc oknh @ ;kph us mls nsus ls bUdkj dj fn;k rFkk ;kfu ge

izfrokfnuh ls vyx ls ngst dh ekax djus yxkA

17 bZ-;g fd oknh @ ;kph us eqdnek gktk esa tks dkj.k fookg foPNsn dk

fn;k gS] og xyr o cukoVh gS] vkSj oknh @;kph us ekdwy otg ugha fn;k

vkSj tks dkj.k fn;k gS] og nQk& 13 fgUnw eSfjt ,DV ds 'krksZa dks iwjk ugha

djrk gS] pqukUps bl vk/kkj ij Hkh nkok oknh @ ;kph e; [kjpk ds [kkfjt

fd;k tkosA

16 ,Q-;g fd ge izfrokfnuh us ckj&ckj oknh @ ;kph ls dgk fd og

bl onksRrj ds vUr esa fn;s x;s mfYyf[kr lkeku ftldh dher

eqcfyx&37]50]000 :i;k gksrh gS] ge izfrokfnuh etdwj dks vnk dj nsos vkSj

oDr vnk;xh ds ckor ge izfrokfnuh ls jlhn rgjhj djk ysos fdUrq oknh

@ ;kph tkucw> djds ge izfroknh ds mDr vkHkw"k.k dks gM+i djus dh xjt

ls mDr vkHkw"k.k o lkekuksa dk fooj.k tks uhps fn;k x;k gS] dks nsus ls Hkh

bzdkj dj fn;k ftldks ikus dk eqLrgd o gdnkj ge izfrokfnuh etdwj gSA

[k-;g fd oknksRrj ds izLrkfor rjehe ds iSjk&16 ,Q- ds ckn fuEufyf[kr

fooj.k lEifRr fuEufyf[kr :i ls btkQk fd;k tkos%&

AA fooj.k lEifRrAA

o fooj.k leku tks ojoDr 'kknh esa izfrokfnuh ds ekrk firk }kjk fn;k x;k gS

%&

1-lksus dk >qedk nks tksMh out20 xzke

2-lksus dk xys dk gj ,d ux out 75 xzke

3-lksus dh vaxwBh nks ux out10 xzke

4-dj/kuh lksus dh ,d ux out446 xzke

5-lksus dh ejnkuh vaxwBh 5 ux32 xzke

6-lksus dh fldMh ejnkuh otu266**

7-lksus dk xys dk gkj I.My ,d ux87**

8-lksus dk >qedk ,d tksMh 2 ux18**

9-lksus dh vaxwBh ,d ux out04**

10-lksus dk daxu 3 lsV 6 ihl368**

11-eaxy lw= lksus dk nks ihl out78**

5

12-fcNqvk lksus dh 3 tksMh out120**

13-pwM+h gkFk dh lksus dh 12 ux312**

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

dqy lksuk 1 fdxzk0 842 xzke

14-dj/kuh dej dh 2 ux out3-00 fd-xzk-

15-iSj dk ik;y 8 ux out3-00**

16-iSj dh fofN;k 6 tksM+h42 fd-xzk-

&&&&&&&&&&&&&&

6-42 xzke

&&&&&&&&&&&&&&

lksus ds tsojkr etdwj dh dher eqcfyx&35]00]000 :i;k

o pkanh ds tsojkr etdwj dh dher 2]50]000 :i;k

&&&&&&&&&&&&

dqy ;ksx 37]50]000 :i;k

&&&&&&&&&&&&

izfrokfnuh**

9.Defendant, therefore, placed a counter claim in respect of her

Streedhan.

10.Counter claim of defendant was contested and denied by

plaintiff by filing objection.

11.Trial Court formulated following three issues:-

^^1-D;k ;kph okn i= ds dFkuksa ds vk/kkj ij izR;qRrjnkrk ds fo:) fookg

foPNsn dh fMdzh ikus dk vf/kdkjh gS\

2-D;k okn bl U;k;ky; ds {ks=kf/kdkj ds ckgj gS\

3-D;k ;kph fdlh vU; vuqrks"k dks izkIr djus dk vf/kdkjh gS\**

12.In support of plaint, plaintiff examined himself as PW-1, Laljee

as PW-2, Ram Lautan Singh as PW-3 who filed their affidavit as a

part of examination-in-chief and thereafter cross-examined by

defendant.

13.Oral evidence of defendant comprised of her own statement as

DW-1, statements of Ritiraj Singh as DW-2, Pawan Kumar Singh as

DW-3 and Manoj Kumar Singh as DW-4. Besides, documentary

evidence was also filed by defendant and detailed in the judgement of

Trial Court.

14.Trial Court found that virtually, there was no pleading giving

instances of cruelty, mental or otherwise justifying decree of divorce

on the ground of cruelty under Section 13 of Act, 1955. Minor

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differences between the parties did not come within the ambit of

'cruelty' justifying divorce. Trial Court, therefore, answered question-1

against plaintiff-appellant holding that he failed to prove its case by

pleadings and evidence.

15.Issue-2 was also answered against plaintiff and, thereafter, issue-

3 was also answered against plaintiff.

16.Before this Court, learned counsel for appellant contended that

Trial Court has committed manifest error in observing that plaintiff

failed to prove its case of 'cruelty' and secondly, contended that parties

are not residing together for the last 13 years and marriage has

become irretrievable, therefore, divorce should have been granted in

the present case.

17.Two points for determination has arisen in this appeal which

are:-

(i) Whether appellant has pleaded and proved the incident of

cruelty and Court below has wrongly taken a view otherwise.

(ii) Whether decree of judgement of Court below can be

reversed on the ground that marital relations are irretrievable.

18.Before proceeding to consider question-1, it would be

appropriate to reproduce Section 13 of Act, 1955:-

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

after the commencement of this Act, may, on a petition

presented by either the husband or the wife, be dissolved by a

decree of divorce on the ground that the other party--

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

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

or

(ia) has, after the solemnization of the marriage, treated the

petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not

less than two years immediately preceding the presentation of

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the petition; or

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

or

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

continuously or intermittently from mental disorder of such a

kind and to such an extent that the petitioner cannot reasonably

be expected to live with the respondent.

Explanation.--In this clause,--

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

arrested or incomplete development of mind, psychopathic

disorder or any other disorder or disability of mind and

includes schizophrenia;

(b) the expression “psychopathic disorder” means a

persistent disorder or disability of mind (whether or not

including sub-normality of intelligence) which results in

abnormally aggressive or seriously irresponsible conduct

on the part of the other party, and whether or not it

requires or is susceptible to medical treatment; or]

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

of leprosy; or

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

communicable form; or

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

(vii) has not been heard of as being alive for a period of seven

years or more by those persons who would naturally have heard

of it, had that party been alive;

Explanation. In this sub-section, the expression

“desertion” means the desertion of the petitioner by the other

party to the marriage without reasonable cause and without the

consent or against the wish of such party, and includes the wilful

neglect of the petitioner by the other party to the marriage, and

its grammatical variations and cognate expressions shall be

construed accordingly.

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

before or after the commencement of this Act, may also present

8

a petition for the dissolution of the marriage by a decree of

divorce on the ground--

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

between the parties to the marriage for a period of one year or

upwards after the passing of a decree for judicial separation in a

proceeding to which they were parties; or

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

between the parties to the marriage for a period of one year or

upwards after the passing of a decree for restitution of conjugal

rights in a proceeding to which they were parties.

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

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

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

commencement of this Act, that the husband had married again

before such commencement or that any other wife of the

husband married before such commencement was alive at the

time of the solemnisation of the marriage of the petitioner:

Provided that in either case the other wife is alive at the

time of the presentation of the petition; or

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

marriage, been guilty of rape, sodomy or bestiality; or

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

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

section 125 of the Code of Criminal Procedure, 1973 (2 of

1974) or under the corresponding section 488 of the Code of

Criminal Procedure, 1898 (5 of 1898), a decree or order, as the

case may be, has been passed against the husband awarding

maintenance to the wife notwithstanding that she was living

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

cohabitation between the parties has not been resumed for one

year or upwards; or

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

solemnised before she attained the age of fifteen years and she

has repudiated the marriage after attaining that age but before

attaining the age of eighteen years.

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Explanation. --This clause applies whether the marriage was

solemnised before or after the commencement of the Marriage

Laws (Amendment) Act, 1976 (68 of 1976).

STATE AMENDMENT

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

Pradesh and also when either party to the marriage was not at

the time of marriage a Hindu domiciled in Uttar Pradesh, in

Section 13--

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

always to have been inserted the following

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

with such cruelty as to cause a reasonable apprehension

in the mind of the petitioner that it will be harmful or

injurious for the petitioner to live with the other party;

or”, and

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

always to have been so substituted for following.

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

a decree for judicial separation against that party and--

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

decree, or

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

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

19. Section 13 (ia) of Act of 1955 clearly provides that a decree of

divorce can be granted, in case, after solemnization of marriage,

petitioner has been treated with 'cruelty'.

20.In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511,

Court considered the concept of cruelty and referring to Oxford

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

of inflicting suffering; delight in or indifference to another's pain;

mercilessness; hard-heartedness'.

21.In Black's Law Dictionary, 8th Edition, 2004, term “mental

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

10

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.”

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

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

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

matrimonial relationship must be considered, and that rule is of

special value when the cruelty consists not of violent acts but of

injurious reproaches, complaints, accusations or taunts. In cases

where no violence is averred, it is undesirable to consider

judicial pronouncements with a view to creating certain

categories of acts or conduct as having or lacking the nature or

quality which renders them capable or incapable in all

circumstances of amounting to cruelty; for it is the effect of the

conduct rather than its nature which is of paramount importance

in assessing a complaint of cruelty. Whether one spouse has

been guilty of cruelty to the other is essentially a question of

fact and previously decided cases have little, if any, value. The

court should bear in mind the physical and mental condition of

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

impact of the personality and conduct of one spouse on the

mind of the other, weighing all incidents and quarrels between

the spouses from that point of view; further, the conduct alleged

must be examined in the light of the complainant's capacity for

endurance and the extent to which that capacity is known to the

other spouse. Malevolent intention is not essential to cruelty but

it is an important element where it exits.”

23.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

11

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. ”

24.One of the earliest decision considering “mental cruelty” we

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

wherein Court has said:

“The enquiry therefore has to be whether the conduct charged

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

petitioner a reasonable apprehension that it will be harmful or

injurious for him to live with the respondent. ”

25.In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa

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

of legal cruelty changes according to the changes and advancement of

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

social conceptions, this feature has obtained legislative recognition,

that a second marriage is a sufficient ground for separate residence

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

necessary that physical violence should be used. Continuous ill-

treatment, cessation of marital intercourse, studied neglect,

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

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

mental or legal cruelty.

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

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

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

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

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

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

12

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

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

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

mind of the spouse. Whether it caused reasonable apprehension that it

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

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

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

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

and per se unlawful or illegal. Then the impact or injurious effect on

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

cases, cruelty will be established if conduct itself is proved or

admitted. The absence of intention should not make any difference in

the case, if by ordinary sense in human affairs, the act complained of

could otherwise be regarded as cruelty.

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

considering the concept of “mental cruelty” in the context of Section

13(1)(i)(a) of Act, 1984, Court said that it can be defined as conduct

which inflicts upon the other party such mental pain and suffering as

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

words, mental cruelty must be of such a nature that the parties cannot

reasonably be expected to live together. The situation must be such

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

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

prove that mental cruelty is such as to cause injury to the health of

other party. While arriving at such conclusion, regard must be had to

the social status, educational level of parties, the society they move in,

the possibility or otherwise of the parties ever living together in case

they are already living apart and all other relevant facts and

circumstances which it is neither possible nor desirable to set out

exhaustively. What is cruelty in one case may not amount to cruelty in

another case. It is thus has to be determined in each case having

regard to the facts and circumstances of each case.

13

28.In Savitri Pandey v. Prem Chandra Panadey, (2002) 2

SCC 73, Court held that mental cruelty is the conduct of other

spouse which causes mental suffering or fear to matrimonial life of

other. Cruelty postulates a treatment of party to marriage with such

conduct as to cause a reasonable apprehension in his or her mind that

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

be distinguished from ordinary wear and tear of family life.

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

Court observed that conduct of spouse, if established, an inference can

legitimately be drawn that treatment of spouse is such that it causes an

apprehension in the mind of other spouse, about his or her mental

welfare then this conduct amounts to cruelty. Court observed that

when a petition for divorce on the ground of cruelty is considered,

Court must bear in mind that the problems before it are those of

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

to be borne in mind before disposing of petition for divorce. Before a

conduct can be called cruelty, it must touch a certain pitch of severity.

Mere trivial irritations, quarrels between spouses, which happen in

day-to-day married life, may also not amount to cruelty.

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

Court held that complaints and reproaches, sometimes of ordinary

nature, may not be termed as 'cruelty' but their continuance or

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

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

concerned.

31.In Samar Ghosh vs. Jaya Ghosh (supra), Court also said

that though no uniform standard can be laid down but there are some

instances which may constitute mental cruelty and the same are

illustrated as under:

“(i) On consideration of complete matrimonial life of the

parties, acute mental pain, agony and suffering as would not

14

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 behavior of

one spouse actually affecting physical and mental

health of the other spouse. The treatment complained of

and the resultant danger or apprehension must be very grave,

substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard of

conjugal kindness causing injury to mental health or deriving

sadistic pleasure can also amount to mental cruelty.

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

selfishness, possessiveness, which causes unhappiness and

dissatisfaction and emotional upset may not be a ground for

grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear

and tear of the married life which happens in day to

day life would not be adequate for grant of divorce

on the ground of mental cruelty.

15

(x) The married life should be reviewed as a whole and a few

isolated instances over a period of years will not amount to

cruelty. The ill-conduct must be persistent for a fairly lengthy

period, where the relationship has deteriorated to an extent that

because of the acts and behavior of a spouse, the wronged party

finds it extremely difficult to live with the other party any

longer, may amount to mental cruelty.

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

sterilization without medical reasons and without the consent or

knowledge of his wife and similarly if the wife undergoes

vasectomy or abortion without medical reason or without the

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

may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for

considerable period without there being any physical incapacity

or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

marriage not to have child from the marriage may amount to

cruelty.

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

separation, it may fairly be concluded that the matrimonial

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.”

32.Examining pleadings in present case, we do not find that

assertions in the plaint do satisfy pleadings needed for a case of

divorce founded on cruelty and that being so, evidence also has not

been led to prove cruelty, hence, Trial Court has rightly held that

plaintiff-appellant has failed to prove cruelty. Therefore, question-1

answered against plaintiff.

33.Now, coming to question-2. We find that basically plaint is

founded on pleadings that marriage has become irretrievable. Both are

16

living separately for the last one year and, therefore, divorce must be

granted. Unfortunately, under Section 13 of Act, 1955, divorce is not

permitted on the ground that marriage has become irretrievable.

34.The issue relating to irretrievable break down of marriage has

been considered by a Division Bench of this Court in First Appeal

No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma)

decided on 7.2.2018, wherein it has been observed as follows in

paragraph 28:-

"28. The above findings recorded by Court below could not be

shown perverse or contrary to record. Having considered the

fact that parties are living separately from decades, we are also

of the view that marriage between two is irretrievable and has

broken down completely. Irretrievable breakdown of marriage is

not a ground for divorce under Act, 1955. But, where marriage

is beyond repair on account of bitterness created by the acts of

the husband or the wife or of both, Courts have always taken

irretrievable breakdown of marriage as a very weighty

circumstance amongst others necessitating severance of marital

tie. A marriage which is dead for all purposes cannot be revived

by the Court's verdict, if the parties are not willing. This is

because marriage involves human sentiments and emotions and

if they are dried-up there is hardly any chance of their springing

back to life on account of artificial reunion created by the

Court's decree. On the ground of irretrievable marriage, Courts

have allowed decree of divorce and reference may be made to

Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh

Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also

noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court

made recommendation to Union of India that Act, 1955 be

amended to incorporate irretrievable breakdown of marriage as

a ground for grant of divorce. "

35.Similarly this Court in First Appeal No. 792 of 2008

(Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016

has also considered this question and observed as follows in

paragraphs 7, 8, 10, 11, 12 and 13:-

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"7. Therefore, point for adjudication in this appeal is "whether a

decree of reversal can be passed by granting divorce to the

appellant on the ground which was not subject matter of

adjudication before the Court below and is being raised for the

first time in appeal".

8. Under the provisions of Act, 1955 there is no ground like any

"irretrievable breakdown of marriage", justifying divorce. It is a

doctrine laid down by judicial precedents, in particular,

Supreme Court in exercise of powers under Article 142 of the

Constitution has granted decree of divorce on the ground of

irretrievable breakdown of marriage.

10. This aspect has been considered by this Court in Ram Babu

Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 = 2006 AWC 183

and it has laid down certain inferences from various authorities

of Supreme Court, which read as under:-

"(i) The irretrievable break down of marriage is not a

ground for divorce by itself. But while scrutinizing the

evidence on record to determine whether the grounds on

which divorce is sought are made out, this circumstance

can be taken into consideration as laid down by Hon'ble

Apex Court in the case of Savitri Pandey v. prem Chand

Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat,

AIR 1994 SC 710.

(ii) No divorce can be granted on the ground of

irretrievable break down of marriage if the party seeking

divorce on this ground is himself or herself at fault for the

above break down as laid down in the case of Chetan Dass

Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v.

prem Chand Pandey, (2002) 2 SCC 73 and Shyam Sunder

Kohli v. Sushma Kohli, (2004) 7 SCC 747.

(iii) The decree of divorce on the ground that the marriage

had been 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 can not live together as

laid down in Chandra Kala Trivedi versus Dr. SP Trivedi,

(1993) 4 SCC 232.

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(iv)The decree of divorce on the ground that the marriage

had been irretrievably broken down can be granted in

those cases also where the conduct or averments of one

party have been so much painful for the other party ( who

is not at fault) that he cannot be expected to live with the

offending party as laid down in the cases of V. Bhagat

versus D. Bhagat, (supra), Ramesh Chander versus Savitri,

(1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri,

1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and

A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.

(v) The power to grant divorce on the ground of

irretrievable break down of marriage should be exercised

with much care and caution in exceptional circumstances

only in the interest of both the parties, as observed by

Hon'ble Apex Court at paragraph No. 21 of the judgment

in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra)

and at para 12 in the case of Shyam Sunder Kohli versus

Sushma Kohli, (supra)."

11.The above authorities have been followed by this Court in

''Pradeep Kumar Vs. Smt. Vijay Lakshmi' in 2015 (4) ALJ 667

wherein one of us (Hon'ble Sudhir Agarwal,J.) was a member of

the Bench.

12.In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC

379, it was held that under Section 13 of Act 1955 there is no

ground of irretrievable breakdown of marriage for granting

decree of divorce. Court said that it cannot add such a ground to

Section 13, as that would amount to amendment of Act, which is

the function of legislature. It also referred to some judgments of

Supreme Court in which dissolution of marriage was allowed on

the ground of irretrievable breakdown but held that those

judgments do not lay down any precedent. Supreme Court very

categorically observed as under:-

"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 marriage is also a ground for

divorce. In our opinion, this can only be done by the

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legislature and not by the Court. It is for the Parliament to

enact or amend the law and not for the Court. Hence, we

do not find force in the submission of learned counsel for

the appellant."

13.The above view has been followed in Darshan Gupta Vs.

Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in

'Gurubux Singh Vs. Harminder Kaur' (2010) 14 SCC 301. This

Court also has followed the above view in Shailesh Kumari Vs.

Amod Kumar Sachan 2016 (115) ALR 689.”

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

Court observed that matrimonial matters relates to delicate human and

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

and affection with sufficient play for reasonable adjustments with

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

There is no scope of applying the concept of "irretrievably broken

marriage" as a straitjacket formula for grant of relief of divorce but it

has to be considered in the backdrop of facts and circumstances of the

case concerned.

37.In this regard, we may notice a recent authority of Supreme

Court in Civil Appeal No.4696 of 2013, R. Srinivas Kumar

Vs. R. Shametha, decided on 04.10.2019, wherein Court has

observed that once 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

marriage becomes a fiction, though supported by a legal tie. By

refusing to sever that tie, the law in such case, would not serve the

sanctity of marriage and it would show feelings and emotions of the

parties. However, aforesaid judgement shows that since the ground

that marriage has broken down beyond repair or has become

irretrievable is not one of the ground on which divorce can be granted

under Section 13 of Act, 1955, therefore, Supreme Court has

exercised power under Article 142 of Constitution of India which

power is not vested in this Court. Hence, second point is also

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answered against appellant.

38.No other point has been argued.

39.Appeal lacks merit. Dismissed with costs.

Order Date :- 6.11.2019

Siddhant Sahu