Supreme Court of India

Samar Ghosh vs Jaya Ghosh on 26 March, 2007

Equivalent citations: AIRONLINE 2007 SC 347
Author: Dalveer Bhandari
Bench: B.N. Agrawal , P.P. Naolekar , Dalveer Bhandari
CASE NO.:
Appeal (civil) 151 of 2004

PETITIONER:
Samar Ghosh

RESPONDENT:
Jaya Ghosh

DATE OF JUDGMENT: 26/03/2007

BENCH:
B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari

JUDGMENT:
J U D G M E N T Dalveer Bhandari, J.
This is yet another unfortunate matrimonial dispute which has shattered
the twenty two year old matrimonial bond between the parties. The
appellant and the respondent are senior officials of the Indian
Administrative Service, for short 'IAS'. The appellant and the respondent
were married on 13.12.1984 at Calcutta under the Special Marriage Act,
1954 . The respondent was a divorcee and had a female child from her first
marriage. The custody of the said child was given to her by the District
Court of Patna where the respondent had obtained a decree of divorce
against her first husband, Debashish Gupta, who was also an I.A.S. officer.
The appellant and the respondent knew each other since 1983. The
respondent, when she was serving as the Deputy Secretary in the
Department of Finance, Government of West Bengal, used to meet the
appellant between November 1983 and June 1984. They cultivated close
friendship which later developed into courtship.
The respondent's first husband, Debashish Gupta filed a belated appeal
against the decree of divorce obtained by her from the District Court of
Patna. Therefore, during the pendency of the appeal, she literally
persuaded the appellant to agree to the marriage immediately so that the
appeal of Debashish Gupta may become infructuous. The marriage
between the parties was solemnized on 13.12.1984. According to the
appellant, soon after the marriage, the respondent asked the appellant
not to interfere with her career. She had also unilaterally declared her
decision not to give birth to a child for two years and the appellant should
not be inquisitive about her child and he should try to keep himself aloof
from her as far as possible. According to the appellant, there was
imposition of rationing in emotions in the arena of love, affection, future
planning and normal human relations though he tried hard to reconcile
himself to the situation created by the respondent.
The appellant asserted that the apathy of the respondent and her
inhuman conduct towards him became apparent in no time. In February
1985, the appellant suffered prolonged illness. The respondent's brother
was working in Bareilly. Her parents along with her daughter went there
for sojourn. The appellant could not go because of high temperature and
indifferent health. She left him and went to Bareilly even when there was
no one to look after him during his illness. On her return, the respondent
remained in Calcutta for about four days, but she did not care to meet the
appellant or enquire about his health. According to the appellant, he
made all efforts to make adjustments and to build a normal family life. He
even used to go to Chinsurah every weekend where the respondent was
posted but she showed no interest and was overtly indifferent to him. The
appellant usually returned from Chinsurah totally dejected. According to
the appellant, he felt like a stranger in his own family. The respondent
unilaterally declared that she would not have any child and it was her firm
decision. The appellant felt that his marriage with the respondent was
merely an eye-wash because immediately after the marriage, serious
matrimonial problems developed between them which kept growing.
The respondent was transferred to Calcutta in May 1985. Their residential
flat at the Minto Park Housing Estate stood allotted to the appellant. The
respondent used to come to their flat intermittently. One Prabir Malik, a
domestic servant-cum-cook also used to live in the said flat. He used to
cook food and carry out household work for the appellant. According to
the appellant, the respondent used to say that her daughter was being
neglected and that she might even be harmed. The indication was towards
Prabir Malik. The appellant and the respondent virtually began to live
separately from September, 1985.
The appellant was transferred to Murshidabad in May 1986 but the
respondent continued to stay in Calcutta. The appellant stayed in
Murshidabad up to April 1988 and thereafter he went on deputation on an
assignment of the Government of India but there he developed some
health problem and, therefore, he sought a transfer to Calcutta and came
back there in September 1988. On transfer of the appellant to
Murshidabad, the flat in which they were staying in Minto Park was
allotted to the respondent as per the standard convention. The appellant
and the respondent again began living together in Calcutta from
September 1988. The appellant again tried to establish his home with the
respondent after forgetting the entire past.
According to the appellant, the respondent never treated the house to be
her family home. The respondent and her mother taught respondent's
daughter that the appellant was not her father. The child, because of
instigation of the respondent and her mother, gradually began to avoid
the appellant. The respondent in no uncertain terms used to tell the
appellant that he was not her father and that he should not talk to the
child or love her. The appellant obviously used to feel very offended.
The appellant also learnt that the respondent used to tell her mother that
she was contemplating divorce to the appellant. The respondent's
daughter had also disclosed to the appellant that her mother had decided
to divorce him. According to the appellant, though they lived under the
same roof for some time but the respondent virtually began to live
separately from April, 1989 at her parent's house. In April 1990 the
appellant's servant Prabir Malik had left for Burdwan on getting a job. The
respondent used to come from her parents house to drop her daughter to
her school La Martinere. She used to come to the flat at Minto Park from
the school to cook food only for herself and leave for the office. The
appellant began to take his meals outside as he had no other alternative.
According to the appellant, the said Prabir Malik came to the flat on 24th
August, 1990 and stayed there at the night. The next two days were
holidays. The respondent and her father also came there on 27th August,
1990. On seeing Prabir, the respondent lost her mental equanimity. She
took strong exception to Prabir's presence in her flat and started shouting
that the appellant had no self-respect and as such was staying in her flat
without any right. According to the appellant, he was literally asked to get
out of that flat. The respondent's father was also there and it appeared
that the act was pre-conceived. The appellant felt extremely insulted and
humiliated and immediately thereafter he left the flat and approached his
friend to find a temporary shelter and stayed with him till he got a
government flat allotted in his name on [Link], the
appellant and the respondent have been living separately since 27th
August, 1990. The appellant further stated that the respondent refused
cohabitation and also stopped sharing bed with him without any
justification. Her unilateral decision not to have any child also caused
mental cruelty on the appellant. The appellant was not permitted to even
show his normal affection to the daughter of the respondent although he
was a loving father to the child. The appellant also asserted that the
respondent desired sadistic pleasure at the discomfiture and plight of the
appellant which eventually affected his health and mental peace. In these
circumstances, the appellant has prayed that it would not be possible to
continue the marriage with the respondent and he eventually filed a suit
for the grant of divorce.
In the suit for divorce filed by the appellant in Alipur, Calcutta, the
respondent filed her written statement and denied the averments.
According to the version of the respondent, Prabir Malik, the domestic
servant did not look after the welfare and well-being of the child. The
respondent was apprehensive that Prabir Malik may not develop any
affection towards the respondent's daughter.
According to the version of the respondent, the appellant used to work
under the instructions and guidance of his relations, who were not very
happy with the respondent and they were interfering with their family
affairs. The respondent stated that the appellant has filed the suit for
divorce at the behest of his brothers and sisters. The respondent has not
denied this fact that from 27th August, 1990 they have been continuously
living separately and thereafter there has been no interaction whatsoever
between them.
The appellant, in support of his case, has examined himself as witness
no.1. He has also examined Debabrata Ghosh as witness no.2, N. K.
Raghupatty as witness no.3, Prabir Malik as witness no.4 and Sikhabilas
Barman as witness no.5.
Debabrata Ghosh, witness no.2 is the younger brother of the appellant. He
has stated that he did not attend the marriage ceremony of the appellant
and the respondent. He seldom visited his brother and sister-in- law at
their Minto Park flat and he did not take any financial assistance from his
brother to maintain his family. He mentioned that he noticed some rift
between the appellant and the respondent.
The appellant also examined N. K. Raghupatty, witness no.3, who was
working as the General Secretary at that time. He stated that he knew
both the appellant and the respondent because both of them were his
colleagues. He was occupying a suite in the Circuit House at Calcutta. He
stated that two weeks before the Puja vacation in 1990, the appellant
wanted permission to stay with him because he had some altercation with
the respondent. According to this witness, the appellant was his close
friend, therefore, he permitted him to stay with him. He further stated
that the appellant after a few days moved to the official flat allotted to
him.
Prabir Malik was examined as witness no.4. He narrated that he had
known the appellant for the last 8/9 years. He was working as his servant-
cum-cook. He also stated that since April 1990 he was serving at the
Burdwan Collectorate. He stated that after getting the job at Burdwan
Collectorate, he used to visit the Minto Park flat of the appellant on 2nd
and 4th Saturdays. He stated that the relationship between the appellant
and the respondent was not cordial. He also stated that the appellant told
him that the respondent cooks only for herself but does not cook for the
appellant and he used to eat out and sometimes cooked food for himself.
He stated that the brothers and sisters of the appellant did not visit Minto
Park flat. He also stated that the daughter of the respondent at times
used to say that the appellant was not her father and that she had no
blood relationship with him. He stated that on 4th Saturday, in the month
of August, 1990, he came to the flat of the appellant. On seeing him the
respondent got furious and asked him for what purpose he had come to
the flat? She further stated that the appellant had no residence, therefore,
she had allowed him to stay in her flat. She also said that it was her flat
and she was paying rent for it. According to the witness, she further
stated that even the people living on streets and street beggars have
some prestige, but these people had no prestige at all. At that time, the
father of the respondent was also present. According to Prabir Malik,
immediately after the incident, the appellant left the flat.
The appellant also examined Sikhabilas Barman as witness no.5, who was
also an IAS Officer. He stated that he had known the appellant and his
wife and that they did not have cordial relations. He further stated that
the appellant told him that the respondent cooks for herself and leaves for
office and that she does not cook for the appellant and he had to take
meals outside and sometimes cooked food for himself. He also stated that
the respondent had driven the appellant out of the said flat.
The respondent has examined herself. According to her statement, she
indicated that she and the appellant were staying together as normal
husband and wife. She denied that she ill-treated Prabir Malik. She further
stated that the brothers and sisters of the appellant used to stay at Minto
Park flat whenever they used to visit Calcutta. She stated that they were
interfering in the private affairs, which was the cause of annoyance of the
respondent. She denied the incident which took place after 24.8. 1990.
However, she stated that the appellant had left the apartment on
27.8.1990. In the cross- examination, she stated that the appellant
appeared to be a fine gentleman. She admitted that the relations between
the appellant and the respondent were not so cordial. She denied that she
ever mentioned to the appellant that she did not want a child for two
years and refused cohabitation.
The respondent also examined R. M. Jamir as witness no. 2. He stated that
he had known both of them and in the years 1989-90 he visited their
residence and he found them quite happy. He stated that in 1993 the
respondent enquired about the heart problem of the appellant.
The respondent also examined her father A. K. Dasgupta as witness no. 3.
He stated that his daughter neither insulted nor humiliated her husband in
presence of Prabir Malik nor asked him to leave the apartment. He stated
that the appellant and the respondent were living separately since 1990
and he never enquired in detail about this matter. He stated that the
appellant had a lot of affection for the respondent's daughter. He stated
that he did not know about the heart trouble of the appellant. He stated
that he was also unaware of appellant's bye- pass surgery.
The learned Additional District Judge, 4th Court, Alipur, after examining
the plaint, written statements and evidence on record, framed the follows
issues:
"1. Is the suit maintainable?
2. Is the respondent guilty of cruelty as alleged?
3. Is the petitioner entitled to decree of divorce as claimed?
4. To what other relief or reliefs the petitioner is entitled?"
Issue no. 1 regarding maintainability of the suit was not pressed, so this
issue was decided in favour of the appellant.
The trial court, after analyzing the entire pleadings and evidence on
record, came to the conclusion that the following facts led to mental
cruelty:
1. Respondent's refusal to cohabit with the appellant.
2. Respondent's unilateral decision not to have children after the
marriage.
3. Respondent's act of humiliating the appellant and virtually turning him
out of the Minto Park apartment. The appellant in fact had taken shelter
with his friend and he stayed there till official accommodation was
allotted to him.
4. Respondent's going to the flat and cooking only for herself and the
appellant was forced to either eat out or cook his own meals.
5. The respondent did not take care of the appellant during his prolonged
illness in 1985 and never enquired about his health even when he
underwent the bye-pass surgery in 1993.
6. The respondent also humiliated and had driven out the loyal servant-
cum-cook of the appellant, Prabir [Link] learned Additional District
Judge came to the finding that the appellant has succeeded in proving the
case of mental cruelty against the respondent, therefore, the decree was
granted by the order dated 19.12.1996 and the marriage between the
parties was [Link] respondent, aggrieved by the said judgment of
the learned Additional District Judge, filed an appeal before the High
Court. The Division Bench of the High Court vide judgment dated
20.5.2003 reversed the judgment of the Additional District Judge on the
ground that the appellant has not been able to prove the allegation of
mental cruelty. The findings of the High Court, in brief, are recapitulated
as under:

I. The High Court arrived at the finding that it was certainly within the
right of the respondent-wife having such a high status in life to decide
when she would like to have a child after marriage.
II. The High Court also held that the appellant has failed to disclose in the
pleadings when the respondent took the final decision of not having a
child.
III. The High Court held that the appellant also failed to give the
approximate date when the respondent conveyed this decision to the
appellant.
IV. The High Court held that the appellant started living with the
respondent, therefore, that amounted to condonation of the acts of
cruelty.
V. The High Court disbelieved the appellant on the issue of respondent's
refusing to cohabit with him, because he failed to give the date, month or
the year when the respondent conveyed this decision to him.
VI. The High Court held that the appellant's and the respondent's sleeping
in separate rooms did not lead to the conclusion that they did not cohabit.
VII. The High Court also observed that it was quite proper for the
respondent with such high status and having one daughter by her
previous husband, not to sleep in the same bed with the appellant.
VIII. The High Court observed that refusal to cook in such a context when
the parties belonged to high strata of society and the wife also has to go
to office, cannot amount to mental cruelty.
IX. The High Court's findings that during illness of the husband, wife's not
meeting the husband to know about his health did not amount to mental
cruelty. The High Court was unnecessarily obsessed by the fact that the
respondent was also an IAS Officer. Even if the appellant had married an
IAS Officer that does not mean that the normal human emotions and
feelings would be entirely different.
The finding of the Division Bench of the High Court that, considering the
position and status of the respondent, it was within the right of the
respondent to decide when she would have the child after the marriage.
Such a vital decision cannot be taken unilaterally after marriage by the
respondent and if taken unilaterally, it may amount to mental cruelty to
the appellant.
The finding of the High Court that the appellant started living with the
respondent amounted to condonation of the act of cruelty is unsustainable
in law.
The finding of the High Court that the respondent's refusal to cook food
for the appellant could not amount to mental cruelty as she had to go to
office, is not sustainable. The High Court did not appreciate the evidence
and findings of the learned Additional District Judge in the correct
perspective. The question was not of cooking food, but wife's cooking food
only for herself and not for the husband would be a clear instance of
causing annoyance which may lead to mental cruelty. The High Court has
seriously erred in not appreciating the evidence on record in a proper
perspective. The respondent's refusal to cohabit has been proved beyond
doubt. The High Court's finding that the husband and wife might be
sleeping in separate rooms did not lead to a conclusion that they did not
cohabit and to justify this by saying that the respondent was highly
educated and holding a high post was entirely unsustainable. Once the
respondent accepted to become the wife of the appellant, she had to
respect the marital bond and discharge obligations of marital life. The
finding of the High Court that if the ailment of the husband was not very
serious and he was not even confined to bed for his illness and even
assuming the wife under such circumstances did not meet the husband,
such behaviour can hardly amount to cruelty, cannot be sustained. During
illness, particularly in a nuclear family, the husband normally looks after
and supports his wife and similarly, he would expect the same from her.
The respondent's total indifference and neglect of the appellant during his
illness would certainly lead to great annoyance leading to mental cruelty.
It may be pertinent to mention that in 1993, the appellant had a heart
problem leading to bye-pass surgery, even at that juncture, the
respondent did not bother to enquire about his health even on telephone
and when she was confronted in the cross-examination, she falsely stated
that she did not know about it. Mr. A. K. Dasgupta, father of the
respondent and father-in-law of the appellant, was examined by the
respondent. In the cross-examination, he stated that his daughter and
son-in-law were living separately and he never enquired about this. He
further said that the appellant left the apartment, but he never enquired
from anybody about the cause of leaving the apartment. He also stated
that he did not know about the heart trouble and bye-pass surgery of the
appellant. In the impugned judgment, the High Court has erroneously
placed reliance on the evidence submitted by the respondent and
discarded the evidence of the appellant. The evidence of this witness is
wholly unbelievable and cannot stand the scrutiny of law.
The High Court did not take into consideration the evidence of Prabir Malik
primarily because of his low status in life. The High Court, in the
impugned judgment, erroneously observed that the appellant did not
hesitate to take help from his servant in the matrimonial dispute though
he was highly educated and placed in high position. The credibility of the
witness does not depend upon his financial standing or social status only.
A witness which is natural and truthful should be accepted irrespective of
his/her financial standing or social status. In the impugned judgment,
testimony of witness no.4 (Prabir Malik) is extremely important being a
natural witness to the incident. He graphically described the incident of
27.8.1990. He also stated that in his presence in the apartment at Minto
Park, the respondent stated that the appellant had no place of residence,
therefore, she allowed him to stay in her flat, but she did not like any
other man of the appellant staying in the flat. According to this witness,
she said that the flat was hers and she was paying rent for it. According to
this witness, the respondent further said that even people living on
streets and street beggars have some prestige, but these people have no
prestige at all. This witness also stated that immediately thereafter the
appellant had left the flat and admittedly since 27.8.1990, both the
appellant and the respondent are living separately. This was a serious
incident and the trial court was justified in placing reliance on this
evidence and to come to a definite conclusion that this instance coupled
with many other instances led to grave mental cruelty to the appellant.
The trial Court rightly decreed the suit of the appellant. The High Court
was not justified in reversing the judgment of the trial Court.
The High Court also failed to take into consideration the most important
aspect of the case that admittedly the appellant and the respondent have
been living separately for more than sixteen and half years (since
27.8.1990). The entire substratum of the marriage has already
disappeared. During this long period, the parties did not spend a single
minute together. The appellant had undergone bye-pass surgery even
then the respondent did not bother to enquire about his health even on
telephone. Now the parties have no feelings and emotions towards each
other. The respondent appeared in person. Even before this Court, we had
indicated to the parties that irrespective of whatever has happened, even
now, if they want to reconcile their differences then the case be deferred
and they should talk to each other. The appellant was not even prepared
to speak with the respondent despite request from the Court. In this view
of the matter, the parties cannot be compelled to live together.
The learned Additional District Judge decreed the appellant's suit on the
ground of mental cruelty. We deem it appropriate to analyze whether the
High Court was justified in reversing the judgment of the learned
Additional District Judge in view of the law declared by a catena of cases.
We deem it appropriate to deal with the decided cases. 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.
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'.
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."
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."
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."
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.
This Court has had an occasion to examine in detail the position of mental
cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at
page 337, para 30 observed as under :-
"The enquiry therefore has to be whether the conduct charges as cruelty
is of such a character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious for him to live
with the respondent."
In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa
Yasinkhan & Anr. reported in (1981) 4 SCC 250, this Court stated that the
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.
In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC
105, this Court had an occasion to examine the concept of cruelty. The
word 'cruelty' has not been defined in the Hindu Marriage Act . It has been
used in Section 13(1)(i)(a) of the Act in the context of human conduct or
behaviour in relation to or in respect of matrimonial duties or obligations.
It is a course of conduct of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or unintentional. If it is
physical, it is a question of fact and degree. If it is mental, the enquiry
must begin as to the nature of the 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 the conduct and its effect on the complaining
spouse. There may, however, be cases where the conduct complained of
itself is bad enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into or
considered. In such cases, the cruelty will be established if the 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. Intention is not a
necessary element in cruelty. The relief to the party cannot be denied on
the ground that there has been no deliberate or wilful ill-treatment.
In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that
the concept of cruelty depends upon the type of life the parties are
accustomed to or their economic and social conditions, their culture and
human values to which they attach importance, judged by standard of
modern civilization in the background of the cultural heritage and
traditions of our society. Again, this Court had an occasion to examine in
great detail the concept of mental cruelty. In the case of V. Bhagat v. D.
Bhagat (Mrs. ) reported in (1994) 1 SCC 337, the Court observed, in para
16 at page 347, 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." This Court aptly observed in Chetan
Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259,
as under: "Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard, respect, love and
affection with sufficient play for reasonable adjustments with the spouse.
The relationship has to conform to the social norms as well. The
matrimonial conduct has now come to be governed by statute framed,
keeping in view such norms and changed social order. It is sought to be
controlled in the interest of the individuals as well as in broader
perspective, for regulating matrimonial norms for making of a well-knit,
healthy and not a disturbed and porous society. The institution of
marriage occupies an important place and role to play in the society, in
general. Therefore, it would not be appropriate to apply any submission of
"irretrievably broken marriage" as a straitjacket formula for grant of relief
of divorce. This aspect has to be considered in the background of the
other facts and circumstances of the case." In Savitri Pandey v. Prem
Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under:
"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." This Court in
the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC
619 observed as under: "The concept of cruelty and its effect varies from
individual to individual, also depending upon the social and economic
status to which such person belongs. "Cruelty" for the purposes of
constituting the offence under the aforesaid section need not be physical.
Even mental torture or abnormal behaviour may amount to cruelty and
harassment in a given case."
The mental cruelty has also been examined by this Court in Parveen
Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at pp.716-17 [para
21] which reads as under: "Cruelty for the purpose of Section 13(1) (i-a) is
to be taken as a behaviour by one spouse towards the other, which causes
reasonable apprehension in the mind of the latter that it is not safe for
him or her to continue the matrimonial relationship with the other. Mental
cruelty is a state of mind and feeling with one of the spouses due to the
behaviour or behavioural pattern by the other. Unlike the case of physical
cruelty, mental cruelty is difficult to establish by direct evidence. It is
necessarily a matter of inference to be drawn from the facts and
circumstances of the case. A feeling of anguish, disappointment and
frustration in one spouse caused by the conduct of the other can only be
appreciated on assessing the attending facts and circumstances in which
the two partners of matrimonial life have been living. The inference has to
be drawn from the attending facts and circumstances taken cumulatively.
In case of mental cruelty it will not be a correct approach to take an
instance of misbehaviour in isolation and then pose the question whether
such behaviour is sufficient by itself to cause mental cruelty. The
approach should be to take the cumulative effect of the facts and
circumstances emerging from the evidence on record and then draw a fair
inference whether the petitioner in the divorce petition has been
subjected to mental cruelty due to conduct of the other." In this case the
Court also stated that so many years have elapsed since the spouses
parted company. In these circumstances it can be reasonably inferred that
the marriage between the parties has broken down irretrievably.
In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court
observed as under: "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 wilful 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, 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
the 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 a delicate human
relationship like matrimony, one has to see the probabilities of the case.
The concept 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. 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 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. The Court dealing with the petition for divorce
on the ground of cruelty has to bear in mind that the problems before it
are those of human beings and the psychological changes in a spouse's
conduct have to be borne in mind before disposing of the petition for
divorce. However, insignificant or trifling, such conduct may cause pain in
the mind of another. But before the conduct can be called cruelty, it must
touch a certain pitch of severity. It is for the Court to weigh the gravity. It
has to be seen whether the conduct was such that no reasonable person
would tolerate it. It has to be considered whether the complainant should
be called upon to endure as a part of normal human life. Every
matrimonial conduct, which may cause annoyance to the other, may not
amount to cruelty. Mere trivial irritations, quarrels between spouses,
which happen in day-to-day married life, may also not amount to cruelty.
Cruelty in matrimonial life may be of unfounded variety, which can be
subtle or brutal. It may be words, gestures or by mere silence, violent or
non-violent."
This Court in Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778
aptly observed as under: "As to what constitutes the required mental
cruelty for the purposes of the said provision, will not depend upon the
numerical count of such incidents or only on the continuous course of
such conduct but really go by the intensity, gravity and stigmatic impact
of it when meted out even once and the deleterious effect of it on the
mental attitude, necessary for maintaining a conducive matrimonial home.
If the taunts, complaints and reproaches are of ordinary nature only, the
court perhaps need consider the further question as to whether their
continuance or persistence over a period of time render, what normally
would, otherwise, not be so serious an act to be so injurious and painful as
to make the spouse charged with them genuinely and reasonably
conclude that the maintenance of matrimonial home is not possible any
longer."
In Shobha Rani 's case (supra) at pp.108-09, para 5, the Court observed as
under: "5. Each case may be different. We deal with the conduct of human
beings who are no generally similar. Among the human beings there is no
limit to the kind of conduct which may constitute cruelty. New type of
cruelty may crop up in any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct complained of. Such is the
wonderful (sic) realm of cruelty." In this case, the Court cautioned the
lawyers and judges not to import their own notions of life in dealing with
matrimonial problems. The judges should not evaluate the case from their
own standards. There may be a generation gap between the judges and
the parties. It is always prudent if the judges keep aside their customs
and manners in deciding matrimonial cases in particular.
In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj
Sharma reported in 2006 (12) Scale 282, this Court observed that the
respondent wife was living separately from the year 1981 and the
marriage has broken down irretrievably with no possibility of the parties
living together again. The Court further observed that it will not be
possible for the parties to live together and therefore there was no
purpose in compelling both the parties to live together. Therefore the best
course was to dissolve the marriage by passing a decree of divorce so
that the parties who were litigating since 1981 and had lost valuable part
of life could live peacefully in remaining part of their life. The Court
further observed that her desire to live with her husband at that stage
and at that distance of time was not genuine.
This Court observed that under such circumstances, the High Court was
not justified in refusing to exercise its jurisdiction in favour of the
appellant who sought divorce from the Court. "Mental cruelty" is a
problem of human behaviour. This human problem unfortunately exists all
over the world. Existence of similar problem and its adjudication by
different courts of other countries would be of great relevance, therefore,
we deem it appropriate to examine similar cases decided by the Courts of
other jurisdictions. We must try to derive benefit of wisdom and light
received from any quarter.
ENGLISH CASES:
William Latey, in his celebrated book 'The Law and Practice in Divorce and
Matrimonial Causes' (15th Edition) has stated that there is no essential
difference between the definitions of the ecclesiastical courts and the
post- 1857 matrimonial courts of legal cruelty in the marital sense. The
authorities were fully considered by the Court of Appeal and the House of
Lords in Russell v. Russell (1897) AC 395 and the principle prevailing in
the Divorce Court (until the Divorce Reform Act, 1969 came in force), was
as follows: Conduct of such a character as to have caused danger to life,
limb, or health, bodily or mental, or as to give rise to a reasonable
apprehension of such danger. {see: Russell v. Russell (1895) P. 315 (CA)}.
In England, the Divorce Reform Act, 1969 came into operation on January
1, 1971. Thereafter the distinction between the sexes is abolished, and
there is only one ground of divorce, namely that the marriage has broken
down irretrievably. The Divorce Reform Act, 1969 was repealed by the
Matrimonial Causes Act, 1973, which came into force on January 1, 1974.
The sole ground on which a petition for divorce may be presented to the
court by either party to a marriage is that the marriage has broken down
irretrievably. Lord Stowell's proposition in Evans v. Evans (1790) 1 Hagg
Con 35 was approved by the House of Lords and may be put thus: before
the court can find a husband guilty of legal cruelty towards his wife, it is
necessary to show that he has either inflicted bodily injury upon her, or
has so conducted himself towards her as to render future cohabitation
more or less dangerous to life, or limb, or mental or bodily health. He was
careful to avoid any definition of cruelty, but he did add: 'The causes must
be grave and weighty, and such as to show an absolute impossibility that
the duties of married life can be discharged'. But the majority of their
Lordships in Russell v. Russell (1897) (supra) declined to go beyond the
definition set out above. In this case, Lord Herschell observed as under:
"It was conceded by the learned counsel for the appellant, and is, indeed,
beyond controversy, that it is not every act of cruelty in the ordinary and
popular sense of that word which amounted to saevitia, entitling the party
aggrieved to a divorce; that there might be many wilful and unjustifiable
acts inflicting pain and misery in respect of which that relief could not be
obtained." Lord Merriman, in Waters v. Waters (1956) 1 All. E.R. 432
observed that intention to injure was not necessary ingredient of cruelty.
Sherman, J. in Hadden v. Hadden, The Times, December 5, 1919, (also
reported in Modern Law Review Vol.12, 1949 at p.332) very aptly
mentioned that he had no intention of being cruel but his intentional acts
amounted to cruelty. In this case, it was observed as under:
'It is impossible to give a comprehensive definition of cruelty, but when
reprehensible conduct or departure from the normal standards of conjugal
kindness causes injury to health or an apprehension of it, it is cruelty if a
reasonable person, after taking due account of the temperament and all
the other particular circumstances would consider that the conduct
complained of is such that this spouse should not be called upon to
endure it.' Lord Simon in Watt (or Thomas) v. Thomas [(1947) 1 All E.R.
582 at p. 585] observed as under: "the leading judicial authorities in both
countries who have dealt with this subject are careful not to speak in too
precise and absolute terms, for the circumstances which might
conceivably arise in an unhappy married life are infinitely various.
Lord Stowell in Evans v. Evans 1790 (1) Hagg Con 35 avoids giving a
"direct definition". While insisting that "mere austerity of temper,
petulance of manners, rudeness of language, want of civil attention and
accommodation, even occasional sallies of passion, if they do not threaten
bodily harm, do not amount to legal cruelty."
In Simpson v. Simpson (1951) 1 All E.R. 955, the Court observed that:
"When the legal conception of cruelty is described as being conduct of
such a character as to cause danger to life, limb or health, bodily or
mental, or to give rise to a reasonable apprehension of such danger, it is
vital to bear in mind that it comprises two distinct elements: first, the ill-
treatment complained of, and, secondly, the resultant danger or the
apprehension thereof. Thus, it is inaccurate, and liable to lead to
confusion, if the word "cruelty" is used as descriptive only of the conduct
complained of, apart from its effect on the victim. Lord Reid, concurring,
reserved opinion as to cases of alleged cruelty in which the defender had
shown deliberate intention, though he did not doubt that there were many
cases where cruelty could be established without its being necessary to
be satisfied by evidence that the defender had such an intention. Lord
Tucker, also concurring, said: 'Every act must be judged in relation to its
attendant circumstances, and the physical or mental condition or
susceptibilities of the innocent spouse, the intention of the offending
spouse and the offender's knowledge of the actual or probable effect of
his conduct on the other's health are all matters which may be decisive in
determining on which side of the line a particular act or course of conduct
lies.' In Prichard v. Pritchard (1864) 3 S&T 523, the Court observed that
repeated acts of unprovoked violence by the wife were regarded as
cruelty, although they might not inflict serious bodily injury on the
husband. Wilde, J.O. in Power v. Power (1865) 4 SW & Tr. 173 aptly
observed that cruelty lies in the cumulative ill conduct which the history
of marriage discloses.
In Bravery v. Bravery (1954) 1 WLR 1169, by majority, the Court held as
under: 'If a husband submitted himself to an operation for sterilization
without a medical reason and without his wife's knowledge or consent it
could constitute cruelty to his wife. But where such an operation was
performed to the wife's knowledge, though without her consent and she
continued to live with him for thirteen years, it was held that the
operation did not amount to cruelty.' Lord Tucker in Jamieson v. Jamieson
(1952) I All E.R. 875 aptly observed that "Judges have always carefully
refrained from attempting a comprehensive definition of cruelty for the
purposes of matrimonial suits, and experience has shown the wisdom of
this course".
In Le Brocq v. Le Brockq [1964] 3 All E.R. 464, at p. 465, the court held as
under: "I think . that 'cruel' is not used in any esoteric or 'divorce court'
sense of that word, but that the conduct complained of must be
something which an ordinary man or a jury .. would describe as 'cruel' if
the story were fully told." In Ward v. Ward [(1958) 2 All E.R. 217, a refusal
to bear children followed by a refusal of intercourse and frigidity, so that
the husband's health suffered, was held to be cruelty; so also the practice
by the husband of coitus interruptus against the wish of his wife though
she desired to have a child. (Also see: White (otherwise Berry) v. White
[1948] 2 All E.R. 151; Walsham v. Walsham, [1949] I All E.R. 774; Cackett
(otherwise Trice) v. Cackett, [1950] I All E.R. 677; Knott v. Knott [1955] 2
All E.R. 305. Cases involving the refusal of sexual intercourse may vary
considerably and in consequence may or may not amount to cruelty,
dependent on the facts and circumstances of the parties. In Sheldon v.
Sheldon, [1966] 2 All E.R. 257, Lord Denning, M.R. stated at p. 259:
"The persistent refusal of sexual intercourse may amount to cruelty, at
any rate when it extends over a long period and causes grave injury to the
health of the other. One must of course, make allowances for any excuses
that may account for it, such as ill-health, or time of life, or age, or even
psychological infirmity. These excuses may so mitigate the conduct that
the other party ought to put up with it. It after making all allowances
however, the conduct is such that the other party should not be called
upon to endure it, then it is cruelty." Later, Lord Denning, at p. 261, said
that the refusal would usually need to be corroborated by the evidence of
a medical man who had seen both parties and could speak to the grave
injury to health consequent thereon. In the same case, Salmon, L. J. stated
at p. 263: "For my part, I am quite satisfied that if the husband's failure to
have sexual intercourse had been due to impotence, whether from some
psychological or physical cause, this petition would be hopeless. No doubt
the lack of sexual intercourse might in such a case equally have resulted
in a breakdown in his wife's health. I would however regard the husband's
impotence as a great misfortune which has befallen both of them."
There can be cruelty without any physical violence, and there is abundant
authority for recognizing mental or moral cruelty, and not infrequently the
worst cases supply evidence of both. It is for the judges to review the
married life of the parties in all its aspects. The several acts of alleged
cruelty, physical or mental, should not be taken separately. Several acts
considered separately in isolation may be trivial and not hurtful but when
considered cumulatively they might well come within the description of
cruelty. (see: Jamieson v. Jamieson, [1952] I All E.R. 875; Waters v.
Waters, [1956] I All E.R. 432. "The general rule in all questions of cruelty
is that the whole matrimonial relations must be considered." (per Lord
Normand in King v. King [1952] 2 All E.R. 584).
In Warr v. Warr [1975] I All ER 85), the Court observed that "Section 1(2)
(c) of the Matrimonial Causes Act, 1973 provides that irretrievable
breakdown may be proved by satisfying the court that the respondent has
deserted the petitioner for a continuous period of at least two years
immediately preceding the presentation of the petition."
AMERICAN CASES:
In Jem v. Jem [(1937) 34 Haw. 312], the Supreme Court of Hawaii aptly
mentioned that cruel treatment not amounting to physical cruelty is
mental cruelty. While dealing with the matter of extreme cruelty, the
Supreme Court of South Dakota in the case of Hybertson v. Hybertson
(1998) 582 N.W. 2d 402 held as under: "Any definition of extreme cruelty
in a marital setting must necessarily differ according to the personalities
of the parties involved. What might be acceptable and even common
place in the relationship between rather stolid individuals could well be
extraordinary and highly unacceptable in the lives of more sensitive or
high-strung husbands and wives. Family traditions, ethnic and religious
backgrounds, local customs and standards and other cultural differences
all come into play when trying to determine what should fall within the
parameters of a workable marital relationship and what will not."
In Rosenbaum v. Rosenbaum [(1976) 38 [Link].3d. 1] the Appellate Court
of Illinois held as under:
"To prove a case entitling a spouse to divorce on the ground of mental
cruelty, the evidence must show that the conduct of the offending spouse
is unprovoked and constitutes a course of abusive and humiliating
treatment that actually affects the physical or mental health of the other
spouse, making the life of the complaining spouse miserable, or
endangering his or her life, person or health."
In the case of Fleck v. Fleck 79 N.D. 561, the Supreme Court of North
Dakota dealt with the concept of cruelty in the following words:
"The decisions defining mental cruelty employ such a variety of
phraseology that it would be next to impossible to reproduce any
generally accepted form. Very often, they do not purport to define it as
distinct from physical cruelty, but combine both elements in a general
definition of 'cruelty,' physical and mental. The generally recognized
elements are:
(1) A course of abusive and humiliating treatment;
(2) Calculated or obviously of a nature to torture, discommode, or render
miserable the life of the opposite spouse; and (3) Actually affecting the
physical or mental health of such spouse."
In Donaldson v. Donaldson [(1917) 31 Idaho 180, 170 P. 94], the Supreme
Court of Idaho also came to the conclusion that no exact and exclusive
definition of legal cruelty is possible. The Court referred to 9 RCL p. 335
and quoted as under: "It is well recognized that no exact inclusive and
exclusive definition of legal cruelty can be given, and the courts have not
attempted to do so, but generally content themselves with determining
whether the facts in the particular case in question constitute cruelty or
not. Especially, according to the modern view, is the question whether the
defending spouse has been guilty of legal cruelty a pure question of fact
to be resolved upon all the circumstances of the case."

CANADIAN CASES:
In a number of cases, the Canadian Courts had occasions to examine the
concept of 'cruelty'. In Chouinard v. Chouinard 10 D.L.R. (3d) 263], the
Supreme Court of New Brunswick held as under: "Cruelty which
constitutes a ground for divorce under the Divorce Act , whether it be
mental or physical in nature, is a question of fact. Determination of such a
fact must depend on the evidence in the individual case being considered
by the court. No uniform standard can be laid down for guidance;
behaviour which may constitute cruelty in one case may not be cruelty in
another. There must be to a large extent a subjective as well as an
objective aspect involved; one person may be able to tolerate conduct on
the part of his or her spouse which would be intolerable to another.
Separation is usually preceded by marital dispute and unpleasantness.
The court should not grant a decree of divorce on evidence of merely
distasteful or irritating conduct on the part of the offending spouse. The
word 'cruelty' denotes excessive suffering, severity of pain,
mercilessness; not mere displeasure, irritation, anger or dissatisfaction;
furthermore, the Act requires that cruelty must be of such a kind as to
render intolerable continued cohabitation." In Knoll v. Knoll 10 D.L.R. (3d)
199, the Ontario Court of Appeal examined this matter. The relevant
portion reads as under: "Over the years the courts have steadfastly
refrained from attempting to formulate a general definition of cruelty. As
used in ordinary parlance "cruelty" signifies a disposition to inflict
suffering; to delight in or exhibit indifference to the pain or misery of
others; mercilessness or hard-heartedness as exhibited in action. If in the
marriage relationship one spouse by his conduct causes wanton, malicious
or unnecessary infliction of pain or suffering upon the body, the feelings
or emotions of the other, his conduct may well constitute cruelty which
will entitle a petitioner to dissolution of the marriage if, in the court's
opinion, it amounts to physical or mental cruelty "of such a kind as to
render intolerable the continued cohabitation of the spouses."
In Luther v. Luther [(1978) 5 R.F.L. (2d) 285, 26 N.S.R. (2d) 232, 40 A.P.R.
232], the Supreme Court of Nova Scotia held as under:
"7. The test of cruelty is in one sense a subjective one, namely, as has
been said many times, is this conduct by this man to this woman, or vice
versa, cruelty? But that does not mean that what one spouse may
consider cruel is necessarily so. Cruelty must involve serious and weighty
matters, which, reasonably considered, may cause physical or mental
suffering. It must furthermore -- an important additional requirement -- be
of such a nature and kind as to render such conduct intolerable to a
reasonable person."
The Supreme Court further held as under:
"9. To constitute mental cruelty, conduct must be much more than
jealousy, selfishness or possessiveness which causes unhappiness,
dissatisfaction or emotional upset. Even less can mere incompatibility or
differences in temperament, personality or opinion be elevated to grounds
for divorce."
In another case Zalesky v. Zalesky 1 D.L.R. (3d) 471, the Manitoba Court
of Queen's Bench observed that where cohabitation of the spouses
become intolerable that would be another ground of divorce. The Court
held as under: "There is now no need to consider whether conduct
complained of caused 'danger to life, limb, or health, bodily or mentally,
or a reasonable apprehension of it' or any of the variations of that
definition to be found in the Russell case. In choosing the words 'physical
or mental cruelty of such a kind as to render intolerable the continued
cohabitation of the spouses' Parliament gave its own fresh complete
statutory definition of the conduct which is a ground for divorce under s.
3(d) of the Act."
AUSTRALIAN CASES:
In Dunkley v. Dunkley (1938) SASR 325, the Court examined the term
"legal cruelty" in the following words:
"'Legal cruelty', means conduct of such a character as to have caused
injury or danger to life, limb or health (bodily or mental), or as to give rise
to a reasonable apprehension of danger. Personal violence, actual or
threatened, may alone be sufficient; on the other hand, mere vulgar
abuse or false accusations of adultery are ordinarily not enough; but, if
the evidence shows that conduct of this nature had been persisted in until
the health of the party subjected to it breaks down, or is likely to break
down, under the strain, a finding of cruelty is justified." In La Rovere v. La
Rovere [4 FLR 1], the Supreme Court of Tasmania held as under: "When
the legal conception of cruelty is described as being conduct of such a
character as to cause danger to life, limb or health, bodily or mental, or to
give rise to a reasonable apprehension of such danger, it is vital to bear in
mind that it comprises two distinct elements: first, the ill-treatment
complained of, and, secondly, the resultant danger or the apprehension
thereof. Thus it is inaccurate and liable to lead to confusion, if the word
'cruelty' is used as descriptive only of the conduct complained of, apart
from its effect on the victim." 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".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.
In the Report, it is mentioned that the germ of the breakdown theory, so
far as Commonwealth countries are concerned, may be found in the
legislative and judicial developments during a much earlier period. The
(New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920,
included for the first time the provision that a separation agreement for
three years or more was a ground for making a petition to the court for
divorce and the court was given a discretion (without guidelines) whether
to grant the divorce or not. The discretion conferred by this statute was
exercised in a case Lodder v. Lodder 1921 New Zealand Law Reports
786. Salmond J., in a passage which has now become classic, enunciated
the breakdown principle in these words: "The Legislature must, I think, be
taken to have intended that separation for three years is to be accepted
by this court, as prima facie a good ground for divorce. When the
matrimonial relation has for that period ceased to exist de facto, it should,
unless there are special reasons to the contrary, cease to exist de jure
also. In general, it is not in the interests of the parties or in the interest of
the public that a man and woman should remain bound together as
husband and wife in law when for a lengthy period they have ceased to be
such in fact. In the case of such a separation the essential purposes of
marriage have been frustrated, and its further continuance is in general
not merely useless but mischievous." In the said Report, it is mentioned
that restricting the ground of divorce to a particular offence or
matrimonial disability, causes injustice in those cases where the situation
is such that although none of the parties is at fault, or the fault is of such
a nature that the parties to the marriage do not want to divulge it, yet
such a situation has arisen in which the marriage cannot survive. The
marriage has all the external appearances of marriage, but none in
reality. As is often put pithily, the marriage is merely a shell out of which
the substance is gone. In such circumstances, it is stated, there is hardly
any utility in maintaining the marriage as a fagade, when the emotional
and other bonds which are of the essence of marriage have disappeared.
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.
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 [Link] 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 concrete
instances of human behaviour as bring the institution of marriage into
disrepute.
This Court in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558
dealt with the similar issues in detail. Those observations incorporated in
paragraphs 74 to 79 are reiterated in the succeeding paragraphs.
"74. We have been principally impressed by the consideration that 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 interests 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.
75. Public interest demands not only that the married status should, as far
as possible, 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.
76. 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."
77. 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.
78. 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.
79. When we carefully evaluate the judgment of the High Court and
scrutinize its findings in the background of the facts and circumstances of
this case, it becomes obvious that the approach adopted by the High
Court in deciding this matter is far from satisfactory."
On proper analysis and scrutiny of the judgments of this Court and other
Courts, we have come to the definite conclusion that there cannot be any
comprehensive definition of the concept of 'mental cruelty' within which
all kinds of cases of mental cruelty can be covered. No court in our
considered view should even attempt to give a comprehensive definition
of mental cruelty. Human mind is extremely complex and human
behaviour is equally complicated. Similarly human ingenuity has no
bound, therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may not
amount to cruelty in other case. The concept of cruelty differs from
person to person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial position, social
status, customs, traditions, religious beliefs, human values and their value
system. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of modern
culture through print and electronic media and value system etc. etc.
What may be mental cruelty now may not remain a mental cruelty after a
passage of time or vice versa. There can never be any strait-jacket
formula or fixed parameters for determining mental cruelty in matrimonial
matters. The prudent and appropriate way to adjudicate the case would
be to evaluate it on its peculiar facts and circumstances while taking
aforementioned factors in consideration.
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 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 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.
When we take into consideration aforementioned factors along with an
important circumstance that the parties are admittedly living separately
for more than sixteen and half years (since 27.8.1990) the irresistible
conclusion would be that matrimonial bond has been ruptured beyond
repair because of the mental cruelty caused by the respondent.
The High Court in the impugned judgment seriously erred in reversing the
judgment of the learned Additional Sessions Judge. The High Court in the
impugned judgment ought to have considered the most important and
vital circumstance of the case in proper perspective that the parties have
been living separately since 27th August, 1990 and thereafter, the parties
did not have any interaction with each other. When the appellant was
seriously ill and the surgical intervention of bye-pass surgery had to be
restored to, even on that occasion, neither the respondent nor her father
or any member of her family bothered to enquire about the health of the
appellant even on telephone. This instance is clearly illustrative of the
fact that now the parties have no emotions, sentiments or feelings for
each other at least since 27.8.1990. This is a clear case of irretrievable
breakdown of marriage. In our considered view, it is impossible to
preserve or save the marriage. Any further effort to keep it alive would
prove to be totally counter- productive.
In the backdrop of the spirit of a number of decided cases, the learned
Additional District Judge was fully justified in decreeing the appellant's
suit for divorce. In our view, in a case of this nature, no other logical view
is possible.
On proper consideration of cumulative facts and circumstances of this
case, in our view, the High Court seriously erred in reversing the judgment
of the learned Additional District Judge which is based on carefully
watching the demeanour of the parties and their respective witnesses and
the ratio and spirit of the judgments of this Court and other Courts. The
High Court erred in setting aside a well-reasoned judgment of the trial
court based on the correct analysis of the concept of mental cruelty.
Consequently, the impugned judgment of the High Court is set aside and
the judgment of the learned Additional District Judge granting the decree
of divorce is restored.
This appeal is accordingly disposed of but, in the facts and circumstances
of the case, we direct the parties to bear their own costs.
[Cites 8 , Cited by 320 ]
Supreme Court of India
Shobha Rani vs Madhukar Reddi on 12 November, 1987
Equivalent citations: 1988 AIR 121, 1988 SCR (1)1010, AIR 1988
SUPREME COURT 121, 1988 (1) SCC 105, 1988 BLJR 138, (1988) BLJ
182, (1988) 1 CIVLJ 284, (1988) MAHLR 553, 1988 CRILR(SC MAH
GUJ) 88, (1987) ALLCRIC 564, (1988) 1 DMC 12, (1988) SC CR R
413, (1988) 1 APLJ 1, (1987) 2 LS 64, (1988) 1 ALL WC 250, (1988)
1 CURCC 209, (1988) EASTCRIC 194, (1988) 1 HINDULR 169, (1988)
1 SCJ 307, 1988 SCC (CRI) 60, (1987) 4 JT 433 (SC)
Author: K.J. Shetty
Bench: K.J. Shetty , B.C. Ray
 PETITIONER:
SHOBHA RANI

Vs.

RESPONDENT:
MADHUKAR REDDI

DATE OF JUDGMENT12/11/1987

BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)

CITATION:
1988 AIR 121, 1988 SCR (1)1010
1988 SCC (1) 105 JT 1987 (4) 433
1987 SCALE (2)1008

ACT:
Hindu Marriage Act, 1955 : Section 13(1) (i-a)-`Cruelty'-
Demand for dowry-Whether cruelty-Whether wife entitled to
decree for dissolution of marriage-`Intention'-Whether
necessary to constitute and prove cruelty in matrimonial
cases.
Dowry Prohibition Act, 1961 : `Dowry'-Demand of-Whether
amounts to cruelty entitling wife to decree for dissolution
of marriage.
Indian Penal Code , 1860: Section 498A-`Cruelty'-What
is-Demand for dowry-Whether amounts to cruelty-Whether wife
entitled to decree for dissolution of marriage.

HEADNOTE:

The appellant-wife, a post-graduate in biological

sciences, married the respondent-husband, a medical doctor
on December 19, 1982. Soon after, relations between them
became bitter. Ultimately, the appellant-wife moved the
court for divorce on the ground of cruelty. Her main
complaint was about the dowry demanded by the husband or his
parents.
The trial court rejected the appellant's case on the
ground that there was no satisfactory evidence that the
demands were such as to border on harassment.
The High Court also rejected her case and held that the
appellant appeared to be hypersensitive and imagined too
much and too unnatural things, that the demand for money had
to be viewed from a proper angle, and that there was nothing
wrong in the respondent, who was a doctor, asking his rich
wife to spare some money.
Allowing the appeal by special leave,

HELD: 1.1 In order to curb the evil practice of dowry,

the Parliament enacted the Dowry Prohibition Act, 1961
prohibiting the giving or taking of dowry. But, as the pernicious
practice continued in some communities, the Dowry Prohibition
(Amendment) Act, 1984 was enac- 1011 ted with considerable changes in
the parent Act. Likewise, the Indian Penal Code , 1860 was amended by
introducing an entirely new offence with regard to criminal jurisdiction.
Section 498A was introduced providing for punishment to the husband or
the relative of the husband of a woman, subjecting her to cruelty.
[1015F-H] new dimension has been given to the concept of cruelty.
Explanation to s. 498A of the Indian Penal Code provides
that any wilful conduct which is of such a nature as is likely to drive a
woman to commit suicide or likely to cause grave injury or danger to
life, limb or health (whether mental or physical of the woman), and
harassment of the woman with a view to coercing her or any person
related to
her to meet any unlawful demand for any property or valuable
security would constitute cruelty. [1016E-F]
1.2 Cruelty simpliciter is a ground for divorce under
section 13 of the Hindu Marriage Act. However, the word
`cruelty' has not been defined. Indeed, it could not have
been defined. It has been used in relation to or in respect
of matrimonial duties and obligations. It is a course of
conduct of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or
unintentional. If it is physical, the Court will have no
problem to determine it. It is a question of fact and
degree. If it is mental, the enquiry must begin as to the
nature of cruel treatment and the impact of such treatment
in the mind of the spouse, whether it caused reasonable
apprehension that it would be harmful or injurious to live
with the other. Ultimately, it is a matter of inference to
be drawn by taking into account the nature of the conduct
and its effect on the complaining spouse. There
may, however, be cases where the conduct complained of itself is
bad enough and per se unlawful or illegal. Then the impact
or injurious effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted.
[1013E-H; 1014A]
1.3 The matrimonial conduct which constitutes cruelty
as a ground for dissolution of marriage, if not admitted,
requires to be proved on the preponderance of probabilities
as in civil cases and not beyond a reasonable doubt as in
criminal cases. [1016G]
1.4 Evidence as to harassment to the wife to meet any
unlawful demand for money is necessary to constitute cruelty
in criminal law. This is the requirement of the offence of
cruelty defined under s. 498A of the Indian Penal Code. It
is not so under s. 13(1) (i-a) of the Hindu 1012 Marriage Act, 1955 .The
cruelty need not be only intentional, wilful or deliberate. It is not
necessary to prove the intention in matrimonial offence. From the context
and the set up in which the words `cruelty' has been used in
s. 13(1) (i-a), intention is not a necessary element in cruelty.
That word has to be understood in the ordinary sense of the term
in matrimonial affairs. If the intention to harm, harass or hurt could be
inferred by the nature of the conduct or brutal act complained or,
cruelty could be easily established. But 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. The relief to the party cannot be
denied on the ground that there has been deliberate or
wilful ill-treatment. [1020F-H; 1021A-C]
1.5 The matrimonial duties and responsibilities are of
varying degrees from house to house or person to person.
Therefore, when a spouse makes complaint about the treatment
of cruelty by the partner in life or relations, the Court
should not search for standard in life. In matrimonial
cases, the Court is not concerned with the ideals in family
life. It has only to understand the spouses concerned as
nature made them, and consider their particular grievance.
[1014B,F]
Sheldon v. Sheldon, [1966] 2 ALL E.R. 257, 259, Gollins
v. Gollins, [1963] 2 All E.R. 966 1972 and Narayan Ganesh
Dastane v. Sucheta Narayan Dastane, [1975] 3 SCR 967 1978,
referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3013 of 1987.

From the Judgment and Order dated 30.7.1986 of the Andhra Pradesh
High Court in A.A.O. No. 1491 of 1985.
S. Madhusudan Rao, K.K. Gupta and Rakesh Kumar Gupta for the
Appellant.
K.V. Sreekumar and B. Parthasarthi for the Respondent. The Judgment of
the Court was delivered by JAGANNATHA SHETTY, J. We grant special leave
and proceed to dispose of the appeal.
Shobha Rani is the appellant. Her husband is Madhukar Reddi who is
respondent before us. The wife is post-graduate in biological sciences.
The husband is a medical doctor. They were happily married on December
19, 1982. But their happiness did not last longer. They started exchanging
letters with bitter feelings. Then they began to accuse each other. At one
stage, they thought of winding up by mutual consent. It was perhaps out
of disgust. it would have been better, if it had happened. But
unfortunately, it did not materialise. Ultimately they landed themselves in
the Court. The wife moved the Court for divorce on the ground of cruelty.
Before referring to further facts, let us consider the law. The cruelty
simpliciter is now a ground for divorce under Sec. 13 of the Hindu
Marriage Act (Act 25 of 1955). Section 13 provides, so far as it is material:
"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) .......
(i-a) has, after the solemnization of the marriage, treated the petitioner
with cruelty, or xxxx xxxxx xxxxx xxxxx Section 13(1) (i-a) uses the words
"treated the petitioner with cruelty". The word "cruelty" has not been
defined. Indeed it could not have been defined. It has been used in
relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. It is a
course of conduct of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or unintentional. If it is
physical the court will have no problem to determine it. It is a question of
fact and degree. If it is mental the problem presents difficulty. First, the
enquiry must begin as to the nature of the cruel treatment. Second, the
impact of such treatment in the mind of the spouse. Whether it caused
reasonable apprehension that it would be harmful or injurious to live with
the other. Ultimately, it is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the complaining
spouse. There may, however, be cases where the conduct complained of
itself is bad enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into
or considered. In such cases, the cruelty will be established if the conduct
itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in
the life around us. In matrimonial duties and responsibilities in particular,
we find a sea change. They are of varying degrees from house to house or
person to person. Therefore, when a spouse makes complaint about the
treatment of cruelty by the partner in life or relations, the Court should
not search for standard in life. A set of facts stigmatised as cruelty in one
case may not be so in another case. The cruelty alleged may largely
depend upon the type of life the parties are accustomed to or their
economic and social conditions. It may also depend upon their culture and
human values to which they attach importance. We, the judges and
lawyers, therefore, should not import our own notions of life. We may not
go in parallel with them. There may be a generation gap between us and
the parties. It would be better if we keep aside our customs and manners.
It would be also better if we less depend upon precedents. Because as
Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) "the
categories of cruelty are not closed." Each case may be different. We deal
with the conduct of human beings who are not generally similar. Among
the human beings there is no limit to the kind of conduct which may
constitute cruelty. New type of cruelty may crop up in any case depending
upon the human behaviour, capacity or incapability to tolerate the
conduct complained of. Such is the wonderful/realm of cruelty.
These preliminary observations are intended to emphasize that the Court
in matrimonial cases is not concerned with ideals in family life. The Court
has only to understand the spouses concerned as nature made them, and
consider their particular grievance. As Lord Reid observed in Gollins v.
Gollins, [1963] 2 All. E.R. 966 (1972):
"In matrimonial affairs we are not dealing with objective standards, it is
not a matrimonial offence to fall below the standard of the reasonable
man (or the reasonable woman). We are dealing with this man or this
woman."
Chandrachud, J. (as he then was) in Narayan Ganesh Dastane v. Sucheta
Narayan Dastane , [1975] 3 SCR 967 (978) said:
"The Court has to deal, not with an ideal husband and an ideal wife
(assuming any such exist) but with parti-
cular man and woman before it. The ideal couple or a near-ideal one will
probably have no occasion to go to a matrimonial court, for, even if they
may not be able to drown their differences, their ideal attitudes may help
them overlook or gloss over mutual faults and failures."
With these principles in mind, we may now unfold the story with which the
wife came to the Court seeking dissolution of her marriage. She made
several grievances. We may ignore all but one. The one and the only one
with which we are concerned is her complaint about the dowry demand by
the husband or his parents. The dowry is a deep rooted evil in the society.
It started as customary presents with love and affection. In olden days, it
was customary to give some presents to the bride and bridegroom and his
family at the time of marriage. The parents of the bride or their relations
out of affection and good intention used to provide the couple something
to fall back upon in case of need. The system started at a time when girls
were generally not very much educated and even if they were educated
they were unwilling to take up gainful employment. There was also less
opportunity for them either to supplement the family income or to become
financially independent. There was yet another reason for such customary
gifts. The daughter then was not entitled to a share in the joint family
properties when she had a brother. Hence the father out of affection or
other consideration used to give some cash or kind to the daughter at the
time of marriage. The right of the father to give a small portion of even
the family property as a gift to the daughter at the time of her marriage
was recognised. But unfortunately over the years new practice developed.
The boy or his family members started demanding cash or kind from the
brides parents. They started demanding dowry as a matter of right. The
demand more often extended even after the marriage. There were
instance of harassment of the wife, if the demand was not complied with.
In order to curb this evil practice, the Parliament enacted the Dowry
Prohibition Act, 1961 (Act No. 28 of 1961). The Act prohibited the giving
or taking of dowry. But in spite of this enactment, the pernicious practice
continued in some communities. The Joint Committee of Parliament
appointed to examine the working of the Dowry Prohibition Act remarked
"the evil sought to be done away with by the Act, on the other hand,
increased by leaps and bounds and has now assumed grotesque and
alarming proportions." Again the Parliament intervened. The Dowry
Prohibition (Amendment) Act, 1984 was enacted with considerable
changes in the parent Act. Likewise the Indian Penal Code was amended
by introducing of an entirely new offence hitherto unknown to criminal
jurisprudence. Sec-
tion 498 A has been introduced in the following terms:
"498 A. Husband or relative of husband of a woman subjecting her to
cruelty; whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation-For the purposes of this section "cruelty" means:
(a) Any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand." A new dimension has
been given to the concept of cruelty. Explanation to Sec. 498 A provides
that any wilful conduct which is of such a nature as is likely to drive a
woman to commit suicide would constitute cruelty. Such wilful conduct
which is likely to cause grave injury or danger to life, limb or health
(whether mental or physical of the woman) would also amount to cruelty.
Harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security would also constitute cruelty.
We are, however, not concerned with criminal offence either under
the Dowry Prohibition Act or under the Indian Penal Code . We are
concerned with a matrimonial conduct which constitutes cruelty as a
ground for dissolution of marriage. Such cruelty if not admitted requires
to be proved on the preponderance of probabilities as in civil cases and
not beyond a reasonable doubt as in criminal cases. This Court has not
accepted the test of proof beyond a reasonable doubt. As said by
Chandrachud, J. in Dastane case (Ibid at p. 976):
"Neither section 10 of the Act which enumerates the grounds on which a
petition for judicial separation may be presented nor section 23 which
governs the jurisdiction of the Court to pass a decree in any proceedings
under the Act requires that the petitioner must prove his case beyond a
reasonable doubt. Section 23 confers on the court the power to pass a
decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the
section. Considering that proceedings under the Act are essentially of a
civil nature, the word "satisfied" must mean "satisfied" on a
preponderance of "probabilities" and not "satisfied beyond a reasonable
doubt". Section 23 does not alter the standard of proof in civil cases."
Let us now turn to the evidence in this case. It consists of that of wife as
P.W. 1 as against the evidence of husband as R.W. 1. The parties have
also produced the letters exchanged between them. There appears to be
no doubt that the husband or his parents were demanding dowry from the
appellant. The husband in his letter Ex. Al dated August 28, 1983 wrote to
the wife:
"Now regarding Dowry point, I still feel that there is nothing wrong in my
parents asking for few thousand rupees. It is quite a common thing for
which my parents are being blamed, as harassment."
The wife in her evidence before the Court has stated:
"My Mother-in-law always used to make demand for money from my
parents. I used to tell my parents about what was happening to me in that
house. I used to keep silent when my mother-in-law made demands for
money. The respondent also sometimes used to make demands for
money. I used to tell him as to why should I ask money from my parents,
and I also used to tell him that I would not ask my parents. But he used to
reply that such things were only there in olden times and not now and
that therefore, I should ask money from my parents. There were fixed
deposits receipts in my name in the Bank upto one and a half to two
lakhs. Besides this there was house plot in my name at Jubilee Hills. I was
afraid of telling my husband and my parents in law that I would not ask
my parents for money.
This I was afraid because I had an apprehension that something would be
done to me either physically or mentally if I told them so. I entertained
this apprehension because this went on regularly every day, that is their
demands for money.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
I was afraid to go back again to the respondent's house because I felt that
the pestering for money will go on like this. I, therefore, developed
aversion for going back to the respondent. For that reason, I joined as a
school teacher."
The trial court or the High Court did not state that there was no demand
for money. The case of the wife was, however, rejected on the ground that
there was no satisfactoy evidence that the demands were such as to
border on harassment. The trial court said:
"Though one would not justify demands for money, it has to be viewed in
this perspective. The respondent is a young up coming doctor. There is
nothing strange in his asking his wife to give him money when he is in
need of it. There is no satisfactory evidence that the demands were such
as to border on harassment."
In regard to the admission by the husband in his letter dated August 28,
1983 as to the dowry demanded by his parents, the trial court observed:
"The letter should be read as a whole. The respondent has an explanation
to make and has made one in the cross-examination. He is trying to
confess. It is clear from the attitude of the petitioner that she is prone to
exaggerate things. That is evident from her complaint of food and the
habit of drinking."
xxxxxx xxxxxx xxxxxx "Either because of her over sensitivity or because
of her habit of exaggeration, she has made a mountain of mole-hill.
Further, for the reasons best known to her, the petitioner has not
examined her father. There is no explanation why he has not been
examined in support of her contention that the respondent and his
parents were harassing her for money."
The High Court also went on the same lines. The High Court said that the
wife appears to be hypersensitive and she imagines too much and too
unnatural things. The High Court then observed:
"Though one would not justify demands for money it has to be viewed in
the circumstances from a proper angle. The respondent is a doctor, if he
asks his rich wife to spare some money, there is nothing wrong or
unusual."
This is not a case where the husband requested his wife to give some
money for his personal expenses. The High Court appears to have
misunderstood the case. It has evidently proceeded on a wrong basis. It
proceeded on the ground that the husband wanted some money from his
wife for his personal expenses. If the demand was only of such nature we
would have thrown this appeal away. The wife must extend all help to
husband and so too the husband to wife. They are partners in life. They
must equally share happiness and sorrow. They must help each other.
One cannot take pleasure at the cost of the other. But the case on hand is
not of a failure on that front. It has been admitted by the husband himself
in his letter dated August 28, 1983 addressed to the wife that his parents
demanded dowry. But he wrote to the wife that there was nothing wrong
in that demand of his parents. This is indeed curious. He would not have
stated so unless he was party to the demand. The wife has stated in her
evidence that there were repeated demands for money from her monther-
in-law. Her evidence cannot be brushed aside on the ground that she has
not examined her father. It was not the case of the wife that the dowry
was demanded directly from her father. The evidence of the father was
therefore not material. It is also not proper to discredit the wife as
hypersensitive or prone to exaggeration. That would be judging the wife
by our style of manners and our standard of life. That we cannot apply.
We must try to understand her feelings and then search for the nugget of
truth in the entire evidence.
The contents of Ex. Al should not be read in isolation. It must be viewed
against the background of accusations in the letter dated December 26,
1983 written by advocate for the wife to his counter-part. The relevant
portion of the letter reads:
"In the background of these, the worst form of ill trestment that is meted
out to our client was constant harassment for monies. It may be brought
to your notice that prior to marriage on demand by your client's father a
sum of Rs. 17,000 was given and also a Scooter thereafter. It may be
brought to your notice that one other main reason for your client to dowry
deaths which are very frequently seen now-a-days in papers. It may be
pointed out that your clients philosophy is that since our client's are
financially sound, there is no wrong for your client's parent to ask for few
more thousands. It may be pointed out and brought to your notice that it
appears your client's sole object of marriage was to get the monies
standing in the name of our client transferred to his name. It would be
better to understand that money that stand in our client's name are
somwhere about two lakhs. It is not out of place to mention that your
client's behaviour and treatment with our client could only be said to be a
pointer for seeking these monies alone and marriage was a device..........."
The cumulative effect of all the circumstances and the evidence of parties
lead to the conclusion that the demand of dowry went on with the support
of the husband. The High Court while dealing with this part of the case
has observed that there is no evidence to show that the demands were
such as to cause harassment to the wife. The High Court appears to have
misconstrued the scope of cruelty in matrimonial affairs. The evidence as
to harassment to the wife to meet any unlawful demand for money is
necessary to constitute cruelty in criminal law. It is the requirement of the
offence of `cruelty' defined under sec. 498A of the Indian Penal Code. Sec.
13(1)(i-a) of the Hindu Marriage Act provides that the party has after
solemanization of the marriage treated the petitioner with cruelty. What
do these words mean? What should be the nature of cruelty? Should it be
only intentional, wilful or deliberate? Is it necessary to prove the intention
in matrimonial offence? we think not. We have earlier said that cruelty
may be of any kind and any variety. It may be different in different cases.
It is in relation to the conduct of parties to a marriage. That conduct which
is complained of as cruelty by one spouse may not be so for the other
spouse. There may be instance of cruelty by the unintentional but
inexcusable conduct of any party. The cruel treatment may also result by
the cultural conflict of the spouses. In such cases, even if the act of
cruelty is established, the intention to commit cannot be established. The
aggrieved party may not get relief. We do not think that that was the
intention with which the Parliament enacted sec. 13(1) (i-a) of the Hindu
Marriage Act . The context and the set up in which the word 'cruelty' has
been used in the section, seems to us, that intention is not a necessary
element in cruelty. That word has to be understood in the ordinary sense
of the term in matrimonial affairs. If the intention to harm, harass or hurt
could be inferred by the nature of the conduct or brutal act complained of,
cruelty could be easily established. But 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. The relief
to the party cannot be denied on the ground that there has been no
deliberate or wilful ill-treatment. The same is also the line of reasoning
adopted by the House of Lords in Gollins v. Gollins, [1963] 2 All E.R. 966
at 976 where Lord Evershed said:
"I am unable to accept the premise that "cruelty" in matrimonial
proceedings requires or involves of necessity the element of malignity-
though I do not of course doubt that if malignity be in fact established it
would be highly relevant to a charge of cruelty. In my opinion, however,
the question whether one party to a marriage has been guilty of cruelty to
the other or has treated the other with cruelty does not, according to the
ordinary sense of the language used by Parliament, involve the presence
of malignity (or its equivalent); and if this view be right it follows, as I
venture to think, that the presence of intention to injure on the part of the
spouse charged or (which is, as I think, the same thing) proof that the
conduct of the party charged was "aimed at" the other spouse is not an
essential requisite for cruelty. The question in all such cases is, to my
mind, whether the acts or conduct of the party charged were "cruel"
according to the ordinary sense of that word, rather than whether the
party charged was himself or herself a cruel man or woman.............
Bearing in mind the proper approach to matrimonial offence, we are
satisfied that the facts and circumstances brought out by the appellant in
this case do justify an inference that there was demand for dowry. The
demand for dowry is prohibited under law. That by itself is bad enough.
That, in our opinion, amounts to cruely entitling the wife to get a decree
for dissolution of marriage.
In the result, we allow the appeal and in reversal of the judgments of the
courts below, we grant a decree for dissolution of the marriage. In the
circumstances of the case, however, we make no order as to costs.
Supreme Court of India
V. Bhagat vs D. Bhagat on 19 November, 1993
Equivalent citations: 1994 AIR 710, 1994 SCC (1) 337
Author: B.P. Jeevan Reddy
Bench: B.P. Jeevan Reddy , Kuldip Singh
PETITIONER:
V. BHAGAT

Vs.

RESPONDENT:
D. BHAGAT

DATE OF JUDGMENT19/11/1993

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
KULDIP SINGH (J)
CITATION:
1994 AIR 710 1994 SCC (1) 337
JT 1993 (6) 428 1993 SCALE (4)488

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- This is
an unusual case calling for an unusual solution. The husband sued for
divorce on the ground that the wife is guilty of adulterous course of life.
The wife not only denied the allegation she attributed the allegation to
lack of mental equilibrium of the husband. The husband then amended his
petition; he alleged a new ground for divorce viz., mental cruelty.
According to him, the allegations made in the written statement per se
constitute cruelty which entitle him straight away to a divorce without
going into the original allegation of adultery. He is also relying upon
certain questions put to him in cross-examination by the counsel for the
respondent and the said counsel's explanatory statement made in that
connection. We may elaborate.
[Link] petitioner-applicant, Shri V. Bhagat is an Advocate practicing in this
Court and Delhi High Court. He is now aged about 55 years. The
respondent wife is working at present as the Vice-President of ITDC, a
Public Sector Corporation. She is aged about 50 years. They were married
in the year 1966. They have two grown-up children now a son and a
daughter. The son is a doctor while the daughter holds an MBA degree
and is working with an American Company in California.
[Link] respondent was working in a Television Company at the time of her
marriage. After the birth of a child she left the job in August 1967. The
respondent started working again from the year 1972 onwards. To start
with she was employed in a Travel Agency. Somewhere around 1978-79,
the petitioner began suspecting her of infidelity. According to him, when
he questioned the respondent of her adulterous behaviour, she admitted
the same and asked to be pardoned. The wife denies this. She says, she
never made any such admission and that the allegation is a totally false
one. From 1980 onwards the petitioner was making attempts to obtain a
divorce by consent. The respondent was not willing. On May 28, 1985, he
instituted the present petition for divorce in the District Court, Delhi. The
divorce petition runs into more than 160 paragraphs. The main ground is
adultery. According to the husband, the wife is an incorrigible adulteress.
The respondent flied the written statement denying the allegations. The
written statement, it anything, is even lengthier and more voluminous
than the divorce petition.
She has denied the allegation in toto. According to her, the husband is
like Othello a pathologically suspicious character.
[Link] February 5, 1986, the petition for divorce was withdrawn and
transferred to the High Court of Delhi. It was assigned to Justice H.C. Goel.
The learned Judge struck out a large number of paragraphs from the
petition for divorce. Against the order of the learned Judge, the petitioner
approached this Court by way of an appeal which was allowed on February
19, 1987. On that occasion, this Court directed the learned Chief Justice of
the Delhi High Court to nominate a learned Judge to take up the divorce
petition and dispose it of as expeditiously as possible. It was directed that
the matter may be heard on day-to-day basis as far as possible.
[Link] May 1987, the petitioner filed an interlocutory application before the
High Court for passing a decree of divorce on the basis of the averments
made by the respondent in her written statement/counter. According to
him, those allegations amounted to cruelty against him and furnished
adequate grounds for passing a decree of divorce. He then filed an
application in this Court to withdraw the said interlocutory application to
the file of this Court and grant the relief prayed for by him. This Court
refused to do so. The interlocutory application filed by him was dismissed
by the High Court. Thereafter, he amended his petition for divorce and
again filed another interlocutory application for granting divorce on the
basis of the averments made by the respondent in her written statement.
This application too was dismissed by the High Court. It is stated that the
special leave petition filed against the same was also dismissed by this
Court. The trial is in progress now. Petitioner's evidence is over and the
wife's statement is being recorded. At this stage, the present application
I.A. No. 1 of 1993 is filed in Civil Appeal No. 424 of 1987 (which was
disposed of on February 19, 1987). The prayer in the application is to give
appropriate directions for speedy disposal of the divorce petition. In this
application the petitioner has made the following averments: the petition
for divorce is pending over the last 8 years. The respondent has indulged
in dilatory tactics to protract the litigation. The respondent spent more
than 11 months in cross-examining the petitioner alone (February 19,
1992 to January 1993). While the examination-in-chief is mere 30 pages,
the cross-examination runs into more than 150 pages most of it irrelevant
and unnecessary. The trial Judges are unable to stop the vexatious cross-
examination by the counsel for the respondent. The repeated directions
from this Court to dispose of the divorce petition as expeditiously as
possible and on day-to-day basis did not have the desired effect. As many
as five learned Judges of the High Court have tried this matter, but still it
is at the stage of recording of evidence. The evidence of the respondent
wife is yet to be completed. As a matter of fact, on May 1, 1991, this
Court was constrained to observe:
"We are inclined to agree with the counsel for the petitioner that the
directions have not been followed and the matter has unnecessarily been
protracting. We request the learned Chief Justice of the High Court to
personally look into the matter and allot the case to a learned Judge
on the appellate side who can deal with the matter day-to-day and have it
disposed of within a reasonable time, say, within three to four months
from today."
The petitioner complains that even though a period of more than 28
months has elapsed since the said order, the matter is still at the stage of
trial.
[Link] her counter filed to this application, the respondent stated that she is
in no way responsible for the delay in disposal of the divorce petition and
that in fact the petitioner himself is responsible for the delay. She
submitted that almost every order passed by the Delhi High Court was
challenged by him by way of special leave petition in this Court and that
he has also been making allegations against the learned Judges trying the
petition as and when they passed orders unfavourable to him.
[Link] this application (I.A. No. 1 of 1993), this Court directed on May 3,
1993, both the parties to be present in person in the Court with a view to
explore the possibility of a settlement. On the next date, i.e. May 7, 1993,
the respondent was not present. The matter was adjourned to July 19,
1993. On July 19, 1993, the parties were heard for some time and the
Court suggested to the parties to find a via media to settle the matter.
The parties sought for a short adjournment. The matter was adjourned to
August 6, 1993. On 6th August, the matter was again adjourned to 16th
August on which date we were told that the parties could not arrive at any
settlement, whereupon the arguments of the counsel for the parties were
heard. In the background of the orders of this Court made in this IA,
referred to above, learned counsel for the petitioner reiterated his plea to
grant a divorce on the ground of cruelty evidenced by the averments in
her counter and the questions put to him in the cross-examination.
Counsel submitted that the marriage between the parties has broken
down irretrievably. Having regard to the nature of allegations and
counter-allegations made by the parties against each other, there is
hardly any room for their coming together. The petitioner has been trying
to obtain divorce right from the year 1980. For five years he tried to get it
by consent, failing which he approached the Court. Eight years have
passed by and in spite of the repeated orders of this Court, even the trial
is not yet over. The petitioner is now 55 years old. A good part of the lives
of both the parties has been spent in rancour and litigation. Dehors the
allegations of adultery originally made in the petition for divorce, the
petitioner is entitled to divorce on the basis of the additional ground put
in by way of amendment viz., cruelty mental cruelty by wife. The
averments made in her counter and the questions put by her counsel in
the cross-examination of the petitioner do constitute clear acts of cruelty.
In view of the said averments/questions, no further material is necessary
to establish the said additional ground. In her written statement, the
respondent has alleged that the petitioner is "suffering from mental
hallucination" that his is a "morbid mind for which he needs expert
psychiatric treatment" and further that "the petitioner is suffering from
paranoid disorder. He needs expert psychological treatment.... He is
incoherent in his thinking.... The petitioner is a mental patient. The
petitioner needs treatment by a psychiatrist to whom he was directed by
his own sister.... He is a patient and needs treatment and restoration of
normal mental health.... The petitioner needs psychological treatment to
make him act a normal person" and so on and so forth. In the cross-
examination of the petitioner, the Senior Advocate appearing for the
respondent wife put several questions suggesting that the petitioner and
the several members of his family including his grandfather are lunatics
and that a streak of insanity is running in the entire family. When he
protested against the said questions, the learned Senior Advocate made
the following statement in the Court "all of your (petitioner's) family
including your grandfather and others are lunatics with streaks of insanity
running in the entire family; this is the respondent's case; and that is why
these questions have been asked." The said questions were put and the
said statement was made by her Advocate at the instructions of the
respondent. Notwithstanding the dismissal of a similar application by the
Delhi High Court and the dismissal of a special leave petition there
against by this Court, this is a fit and proper case and this is the most
appropriate stage at which the petitioner should be granted divorce on
the ground of cruelty. The situation has become intolerable, says the
counsel.
[Link] learned counsel for the respondent, on the other hand, reiterated
his submission that the respondent was not responsible for the delay; that
in fact the petitioner has himself been delaying the proceedings and that
the questions put to him in cross-examination and the defence taken in
the written statement are merely the reactions of the wife to unjustified
and unwarranted aspersions cast upon her character. The respondent has
only been trying to explain that the several serious allegations levelled
against her are the products of a sick mind and are mere figments of his
imagination. She submitted that her children and even the sisters and
mother of the petitioner are siding her in this dispute and that the
petitioner alone, alienated from his entire family, is persecuting her. It is
submitted that she is only trying to defend her honour, self-respect and
standing in society. It is pointed out that she is holding a fairly high office
in a Public Sector Corporation and it is her duty to herself, her children
and to the families of her husband and herself to disprove the unfounded
allegations levelled against her. She has submitted that she is not
agreeable to divorce on any ground whatsoever and that she is always
prepared to live with the petitioner. It is only the petitioner who is keeping
himself away from her company and has confined himself to one room,
whereas she, her children and her mother-in-law live in the house as
usual.
[Link] is said that marriages are made in heaven, that may be so, but this
one has turned into a hell for sure. The allegations and the counter
allegations are indicative of the intense hatred and rancour between the
parties. Any reconciliation is out of question. The question before us is
what in all the facts and circumstances of the case, should we do? Three
courses are open. First is to look to the prayer in the application and
reject it in view of two earlier directions to the same effect. Second, to
make another request (third one) to the High Court to dispose of the
matter expeditiously and third, to explore whether any solution can be
found to the predicament in which the parties are now placed. So far as
the first two alternatives are concerned, it may be noted, there have been
two such directions by this Court earlier, one in the year 1987 and the
other in the year 1991. The advisability of a third such direction request is
open to question. If two such requests/directions had no effect, it is
doubtful that a third direction would yield any better result. It may be an
exercise in futility besides being inadvisable. In the facts and
circumstances of this case, we are inclined to explore the third
alternative.
[Link] this is a rather unusual case can hardly be disputed. The divorce
petition has been pending for more than 8 years. With a view to expedite
its disposal it was transferred from the District Court to the High Court.
This Court repeatedly requested (in 1987 and 1991) the High Court to try
the matter on a day-to-day basis and dispose it of expeditiously. The
petition is still at the stage of trial. It is not possible for us to apportion
the blame. Each side attributes it to the other. Five learned Judges of the
High Court have tried their hand at the case, but it still remains at the
stage of trial. The cross-examination of the petitioner alone took one full
year. The cross-examination of the respondent is yet to begin. Having
regard to the number of allegations made by the petitioner in his divorce
petition and the material relied upon by him, it may safely be presumed
that the cross-examination of the respondent would take as much time as
the cross-examination of the petitioner, if not more. Each party, it
appears, is out to punish the other for what the other is supposed to have
said or done. This appears to be the single thought ruling their lives
today. A good part of the lives of both the parties has been consumed in
this litigation and yet the end is not in sight. The assertion of the wife that
she wants to live with the husband even now, appears to be but a mere
assertion. After all the allegations made against her in the petition and
the allegations levelled by her against the petitioner, living together is out
of question. Rapprochement is not in the realm of possibility. For the
parties to come together, they must be superhumans, which they are not.
The parties have crossed the point of no return long ago. The nature of
the allegations levelled against each other show the intense hatred and
animosity each bears towards the other. The marriage is over except in
name. The desirability of allowing the continuation of the divorce
proceedings in the particular facts and circumstances of this case, is open
to grave doubt. The matter may take more than a year at the minimum to
conclude in the High Court and then there is the right of appeal to the
losing party. Both the parties are well- settled. The children are grown-up
and are on their own. It is significant to note that this is not a case where
allegations are made only by one party against the other; both have
levelled serious allegations against the other. The husband calls the wife
an adulteress and the wife calls the husband a lunatic.
[Link] question, however, is whether the allegations made by the
respondent wife do constitute mental cruelty. The allegations in her
written statement and her counsel's explanatory statement in Court have
already 345 been set out hereinabove. The respondent has asserted in her
written statement that she "has every right to make correct statement of
facts to defend herself against the wanton, imaginary and irresponsible
allegations".
[Link] (i-a) of Section 13 specifies cruelty as one of the grounds of
divorce. Insofar as relevant, Section 13 reads:
"13. Divorce.- (1) Any marriage solemnised, whether before or after the
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground
that the other party- (i-a) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or"
[Link] contemplated by the sub-clause is both physical and mental.
We are concerned herein with the latter. It is not possible to define
'mental cruelty' exhaustively. As observed by Lord Reid in Gollins v.
Gollins1:
"No one has ever attempted to give a comprehensive definition of cruelty
and I do not intend to try to do so. Much must depend on the knowledge
and intention of the respondent, on the nature of his (or her) conduct, and
on the character and physical or mental weaknesses of the spouses, and
probably no general statement is equally applicable in all cases except
the requirement that the party seeking relief must show actual or
probable injury to life, limb or health. It is easy to see that the origin of
this requirement is the decision in the well-known case of Russell v.
Russell2."
To the same effect are the observations of Lord Pearce (at p. 695; All ER
p. 992): "It is impossible to give a comprehensive definition of cruelty, but
when reprehensible conduct or departure from the normal standards of
conjugal kindness causes injury to health or an apprehension of it, it is, I
think, cruelty if a reasonable person, after taking due account of the
temperament and all the other particular circumstances would consider
that the conduct complained of is such that this spouse should not be
called on to endure it.
I agree with Lord Merriman whose practice in cases of mental cruelty was
always to make up his mind first whether there was injury or apprehended
injury to health. In the light of that vital fact the court has then to decide
whether the sum total of the reprehensible conduct was cruel. That
depends on whether the cumulative conduct was sufficiently weighty to
say that from a reasonable person's point of view, after a consideration of
any excuse which this respondent might have in the 1 1964 AC 644:
(1963) 2 All ER 966 2 (1895-99) All ER Rep 1 :(1897) AC
395 circumstances, the conduct is such that this petitioner ought not to
be called on to endure it.
The particular circumstances of the home, the temperaments and
emotions of both the parties and their status and their way of life, their
past relationship and almost every circumstance that attends the act or
conduct complained of may all be relevant."
The reference to "Injury to life, limb or health" in the above passages
must be understood in the context of the requirements of the divorce law
then obtaining in the United kingdom.
[Link] change of law brought about by the Hindu Marriage Laws
(Amendment) Act, 1976 deserves notice. Prior to the said Amendment Act,
cruelty was not a ground for claiming divorce under the Hindu Marriage
Act . It was a ground only for claiming judicial separation under Section 10 .
By the said Amendment Act, cruelty was made a ground for divorce as
well evidently in recognition of the changing mores of the society. While
doing so, it is significant, the words "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," qualifying the
expression "cruelty" in Section 10(1)(b) , were omitted by Parliament. It is,
therefore, not necessary for the party claiming divorce to prove that the
cruel treatment is of such a nature as to cause an apprehension a
reasonable apprehension in his/her mind that it will be harmful or
injurious for him/her to live with the other party. Now what does this
change mean? Surely, the deletion of the said words could not have been
without a purpose. The cruelty of the nature described in Section 10(1)
(b) has been explained in this Court's decision in N.G. Dastane v. S.
Dastane3 . Chandrachud, J. speaking for the Bench, held that where an
allegation of cruelty is made, the enquiry 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".
The learned Judge held further: (SCC pp. 337- 38, paras 30-3 1) "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 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. But under Section 10(1)(b) , harm or injury to health,
reputation, the working-career or the like, would be an important
consideration in determining whether the conduct of the respondent
amounts to cruelty. Plainly, what we must determine is not whether the
petitioner has proved the charge of cruelty having regard to the principles
of English law, but whether the petitioner 3 (1975) 2 SCC 326: AIR 1975
SC 1534 proves that the respondent has treated him with such cruelty as
to cause a reasonable apprehension in his mind that it will be harmful or
injurious for him to live with the respondent."
This requirement is no longer present in Section 13(1) (i-a).
15. If so, the question arises what kind of cruel treatment does clause (i-
a) contemplate? In particular, what is the kind of mental cruelty that is
required to be established? While answering these questions, it must be
kept in mind that the cruelty mentioned in clause (i-a) is a ground now for
divorce as well as for judicial separation under Section
10. Another circumstance to be kept in mind is that even where the
marriage has irretrievably broken down, the Act, even after the 1976
(Amendment) Act, does not permit dissolution of marriage on that ground.
This circumstance may have to be kept in mind while ascertaining the
type of cruelty contemplated by Section 13(1) (i-a).
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.
[Link] this stage, we may refer to a few decisions of this Court rendered
under Section 13(1) (i-a). In Shobha Rani v. Madhukar Reddi4, Justice K.
Jagannatha Shetty, speaking for the Division Bench, held: (SCC pp. 108-
09, paras 4 and 5) "Section 13(1) (i-a) uses the words 'treated the
petitioner with cruelty'. The word 'cruelty' has not been defined. Indeed it
could not have been defined. It has been used in relation to human
conduct or human behaviour. It is the conduct in relation to or in respect
of matrimonial duties and obligations. It is a course of conduct of one
which is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical the court will have
no problem to determine it. It is a question of fact and degree. If it is
mental the problem presents difficulty. First, the enquiry must begin as 4
(1988) 1 SCC 105:1988 SCC (Cri) 60 to the nature of the cruel treatment.
Second, the impact of such treatment on the mind of the spouse. Whether
it caused reasonable apprehension that it would be harmful or injurious to
live with the other. Ultimately, it is a matter of inference to be drawn by
taking into account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases where the conduct
complained of itself is bad enough and per se unlawful or illegal. Then the
impact or the injurious effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in
the life around us. In matrimonial duties and responsibilities in particular,
we find a sea change. They are of varying degrees from house to house or
person to person.
Therefore, when a spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the court should not search for standard
in life. A set of facts stigmatised as cruelty in one case may not be so in
another case. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social conditions.
It may also depend upon their culture and human values to which they
attach importance. We, the judges and lawyers, therefore, should not
import our own notions of life. We may not go in parallel with them. There
may be a generation gap a between us and the parties. It would be better
if we keep aside our customs and manners. It would be also better if we
less depend upon precedents. Because as Lord Denning said in Sheldon v.
Sheldon' 'the categories of cruelty are not closed'. Each case may be
different. We deal with the conduct of human beings who are not
generally similar. Among the human beings there is no limit to the kind of
conduct which may constitute cruelty. New type of cruelty may crop up in
any case depending upon the human behaviour, capacity or incapability to
tolerate the conduct complained of. Such is the wonderful (sic) realm of
cruelty.
" It was a case where the wife was a postgraduate in biological sciences
while the husband was a doctor. The wife moved the court for divorce on
the ground of cruelty. According to her, she had an amount of Rupees two
lakhs in fixed deposit in a bank apart from a house property, that her
mother-in-law used to make constant demands of money, and that the
respondent husband supported his mother therein. She did not report the
same to her parents because she was afraid that if she informed her
parents, something may be done to her. The respondent-husband himself
admitted in a letter written to the wife that the demand for dowry by his
parents was nothing wrong. On the above facts, it was held that the
ground of cruelty was established and divorce was granted. The following
further observations of Shetty, J. appear to us relevant: (SCC pp. 1 14-15,
para 18) "Section 13(1) (i-a) of the Hindu Marriage Act provides that the
party has after solemnization of the marriage treated the petitioner with 5
(1966) 2 All ER 257, 259: (1966) 2 WLR 993 cruelty. What do these words
mean? What should be the nature of cruelty? Should it be only intentional,
wilful or deliberate? Is it necessary to prove the intention in matrimonial
offence? We think not. We have earlier said that cruelty may be of any
kind and any variety. It may be different in different cases. It is in relation
to the conduct of parties to a marriage. That conduct which is complained
of as cruelty by one spouse may not be so for the other spouse. There
may be instances of cruelty by the unintentional but inexcusable conduct
of any party. The cruel treatment may also result by the cultural conflict
of the spouse. In such cases, even if the act of cruelty is established, the
intention to commit suicide cannot be established. The aggrieved party
may not get relief. We do not think that was the intention with which the
Parliament enacted Section 13(1) (i-a) of the Hindu Marriage Act . The
context and the set up in which the word 'cruelty' has been used in the
section, seems to us, that intention is not a necessary element in cruelty.
That word has to be understood in the ordinary sense of the term in
matrimonial affairs. If the intention to harm, harass or hurt could be
inferred by the nature of the conduct or brutal act complained of, cruelty
could be easily established. But 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. The relief to the
party cannot be denied on the ground that there has been no deliberate
or wilful ill-treatment."
[Link] Chanderkala Trivedi v. Dr S.P. Trivedi6 the husband sued for divorce
on the ground of cruelty by wife. The wife filed a written statement
wherein she attributed adultery to the husband. In reply thereto the
husband put forward another allegation against the wife that she was
having undesirable association with young boys. Considering the mutual
allegations, R.M. Sahai, J. speaking for Division Bench, observed: (SCC p.
233, para 2) "Whether the allegation of the husband that she was in the
habit of associating with young boys and the findings recorded by the
three courts are correct or not but what is certain is that once such
allegations are made by the husband and wife as have, been made in this
case then it is obvious that the marriage of the two cannot in any
circumstance be continued any further. The marriage appears to be
practically dead as from cruelty alleged by the husband it has turned out
to be at least intimacy of the husband with a lady doctor and unbecoming
conduct of a Hindu wife."
[Link] was argued on behalf of the husband that the wife has failed to
establish the charge of adultery levelled against him and that the charge
of adultery must be proved beyond reasonable doubt. Dealing with the
argument, the learned Judge observed: (SCC pp. 233-34, para 3) 6 (1993)
4 SCC 232 : 1993 SCC (Cri) II 54 : (1993) 3 Scale "But we do not propose
to examine it as we are satisfied that the marriage is dead and the
findings of fact cannot be set aside by this Court except that the appeal
can be sent back to the Division Bench to decide it again which would
mean another exercise in futility leading to tortuous litigation and
continued agony of the parties."
[Link] the light of the principles enunciated hereinabove, we may now
examinewhether the allegations made by the wife in her written
statement and thequestions put by her counsel to the petitioner in cross-
examination amount to mental cruelty within the meaning of the said sub-
clause? The relevant portions of the written statement have already been
set out by us hereinbefore. We have also set out in the said paragraph the
explanatory statement made by the respondent's counsel in court in
Justification of the questions put by him to the petitioner in his cross-
examination. It is true that the said averments must be read in the
context in which they were made. At the same time, it must be
remembered that the wife was merely defending herself against what are,
according to her, totally unfounded allegations and aspersions on her
character. It was not necessary for her to go beyond that and allege that
the petitioner is a mental patient, that he is not a normal person, that he
requires psychological treatment to restore his mental health, that he is
suffering from paranoid disorder and mental hallucinations and to crown it
all, to allege that he and all the members of his family are a bunch of
lunatics. It is not as if these words were uttered in a fit of anger or under
an emotional stress. They were made in a formal pleading filed in the
Court and the questions to that effect were put by her counsel, at her
instructions, in the cross-examination. Even in her additional written
statement she has asserted her right "to make correct statement of facts
to defend herself against the wanton, imaginary and irresponsible
allegations". These are not the mere protestations of an injured wife; they
are positive assertions of mental imbalance and streak of insanity in the
mental build-up of the husband. The husband is an Advocate practicing in
this Court as well as in Delhi High Court. The divorce petition is being
tried in the Delhi High Court itself. Making such allegations in the
pleadings and putting such questions to the husband while he is in the
witness-box, is bound to cause him intense mental pain and anguish
besides affecting his career and professional prospects. It is not as if the
respondent is seeking any relief on the basis of these assertions. The
allegations against her may not be true; it may also be true that the
petitioner is a highly suspicious character and that he assumes things
against his wife which are not well founded. But on that ground, to say
that the petitioner has lost his normal mental health, that he is a mental
patient requiring expert psychological treatment and above all to brand
him and all the members of his family including his grandfather as
lunatics, is going far beyond the reasonable limits of her defence. It is
relevant to notice that the allegations of the wife in her written statement
amount in effect to "psychopathic disorder or any other disorder"
within the meaning of the Explanation to clause (iii) of sub-section (1)
of Section 13 , though, she has not chosen to say that on that account she
cannot reasonably be expected to live with the petitioner-husband nor has
she chosen to claim any relief on that ground. Even so, allegations of
'paranoid disorder', ,mental patient', 'needs psychological treatment to
make him act a normal person' etc. are there coupled with the statement
that the petitioner and all the members of his family are lunatics and that
a streak of insanity runs through his entire family. These assertions
cannot but constitute mental cruelty of such a nature that the petitioner,
situated as he is and in the context of the several relevant circumstances,
cannot reasonably be asked to live with the respondent thereafter. The
husband in the position of the petitioner herein would be justified in
saying that it is not possible for him to live with the wife in view of the
said allegations. Even otherwise the peculiar facts of this case show that
the respondent is deliberately feigning a posture which is wholly
unnatural and beyond the comprehension of a reasonable person. She has
been dubbed as an incorrigible adulteress. She is fully aware that the
marriage is long dead and over. It is her case that the petitioner is
genetically insane. Despite all that, she says that she wants to live with
the petitioner. The obvious conclusion is that she has resolved to live in
agony only to make life a miserable hell for the petitioner as well. This
type of 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
petitioner with mental cruelty. It is abundantly clear that the marriage
between the parties has broken down irretrievably and there is no chance
of their coming together, or living together again. Having regard to the
peculiar features of this case, we are of the opinion that the marriage
between the parties should be dissolved under Section 13(1) (i-a) of Hindu
Marriage Act and we do so accordingly. Having regard to the peculiar
facts and circumstances of this case and its progress over the last eight
years detailed hereinbefore we are of the opinion that it is a fit case for
cutting across the procedural objections to give a quietus to the matter.
[Link] parting with this case, we think it necessary to append a
clarification. Merely because there are allegations and counter-
allegations, a decree of divorce cannot follow. Nor is mere delay in
disposal of the divorce proceedings by itself a ground. There must be
really some extraordinary features to warrant grant of divorce on the
basis of pleadings (and other admitted material) without a full trial.
Irretrievable breakdown of the marriage is not a ground by itself. But
while scrutinising the evidence on record to determine whether the
ground(s) alleged is/are made out and in determining the relief to be
granted, the said circumstance can certainly be borne in mind. The
unusual step as the one taken by us herein can be resorted to only to
clear up an insoluble mess, when the court finds it in the interest of both
the parties.
[Link] petition for divorce H.M. Case No. 1 of 1986 pending in the Delhi
High Court is withdrawn to the file of this Court and is allowed. The
marriage between the parties is dissolved. In the circumstances, the
allegations levelled by the petitioner against the wife are held 'not
proved'. The honour and character of the respondent wife stands
vindicated.
23. There shall be no order as to costs.