all hc and sc judgment on the subject divorce covered in this document. this document only of education purpose not commerial

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VERY USEFUL
JUDGMENTS
ON
DIVORCE
IN INDIA
COMPILED BY
A P RANDHIR
B.COM, LL.M.
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1. INTRODUCTION
India is a country, which believed in a union of Husband and wife for 7
births or eternal. So based on the Indissolubility theory of marriage, the
union of the husband and wife was unbreakable tie. It is a union of bone
with bone and flesh with flesh. It is eternal. The relations of the spouses
did not matter, because even if they were unhappy, they have to live
and die with it. This theory was of the Shastric Hindu Law. However,
the drastic change in the society has seen a sea change in the concept of
marriage and divorce.
These statutes have made provisions for divorce and same is well
accepted by the Indian Society. To facilitate the spouses who do not
intend to continue their marital tie, based on the religion they practice
or the SMA, there are various laws that individuals may follow to get
their marriage dissolved. There are applicable marriage and divorce
laws. The theories of divorce are basically a “fault theory” that is
developed on the basis of the grounds of judicial separation and divorce
that are formulated in section 13(1) of the Hindu Marriage Amendment
Act, 1976. The new evolution of a special kind is the modern theory of
divorce like “Mutual Consent”. Divorce by mutual consent has been
incorporated into the law. Yet there is one more theory called
“breakdown theory or the irretrievable breakdown theory”, which is
reflected in some grounds, when there is failure to resume cohabitation
within one year getting the degree of restitution of conjugal rights and
failure to resume cohabitation within one year after getting the degree
of judicial separation. These two grounds are stated in section 13(1) (a)
and section 13(1) (b) of the Marriage Law Amendment Act, 1976. The
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Hindu Marriage Act, 1955 with its amendment in 1976 laid down nine
grounds, based on guilt theory of divorce.
2. THE HINDU MARRIAGE ACT, 1955 NINE GROUNDS, BASED
ON GUILT THEORY OF DIVORCE. –
a) Adultery
b) Cruelty
c) Desertion
d) Conversion to a non­Hindu religion
e) Incurable insanity or mental disorder
f) Virulent and incurable leprosy
g) Venereal disease in communicable form
h) Taking to sanyasa (i.e. renunciation of world by entering into a holy
order) and
i) Presumption of death.
In addition to these common grounds, the additional four grounds
on which wife alone can sue for divorce. The Special Marriage Act, 1954
as amended by the Marriage Laws (Amendment) Act, 1976 recognizes
eight grounds based on guilt on which either party may seek divorce
and two additional grounds on which wife alone may seek divorce viz,
rape, sodomy or bestiality of the husband. The eight grounds are:
adultery; desertion for at least three years; respondent undergoing a
sentence of imprisonment for seven years or more for an offence under
the Indian Penal Code, 1860; cruelty; venereal disease in a
communicable form, leprosy (only if the disease was not contracted by
the respondent). The careful analysis of Section 13 shows that; there are
in all fifteen grounds for divorce.
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3. ON­FAULT LIABILITY THEORY OF DIVORCE
A look at the provisions of the Hindu Marriage Act, 1955 reveals that
most of the grounds under sub­sections (1) and (2) of section 13 are
based on fault or guilt theory of divorce. According to this theory a
marriage can be dissolved only if one of the parties to marriage has
committed some matrimonial offence recognized as a ground for divorce.
A law of divorce based mainly on fault is inadequate to deal with a
broken marriage. Under the fault theory, guilt has to be proved; divorce
courts are open with concrete instances of human behaviour as to bring
the institution of marriage into disrepute. Once a marriage has broken
down beyond repair, it would be unrealistic for the law not to take note
of that fact, as it would be harmful to society and injurious to the
interest of the parties. There is also a provision for obtaining divorce by
Mutual consent under section 13­B and section 14, which is based on
the consent theory of divorce.
Darshan Gupta v. Radhika Gupta 2013 Indlaw SC 383 Held : that
the petitioner must approach court with clean hands. Grounds of
divorce under S. 13(1) are based on matrimonial offence or fault
theory. It is only commission of matrimonial offence by one spouse that
entitles the other spouse to seek divorce. Here, if petitioner
himself/herself is guilty or at fault, he/she would be disentitled to seek
divorce. Here the husband had come to court for divorce on the
grounds/facts of unsoundness of mind of the cognitive fact of the
Radhika Gupta after two failed deliveries (first one did not survive and
the second one did not survive even after caesarean. She had lost her
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memory and had become like child of 5 years. On which divorce is
sought by the appellant. But the court held that these grounds are not
at all available to him under the "fault theory" on which S. 13(1) of the
Hindu Marriage Act, 1955, is founded. In case the ground for seeking
matrimonial relief (divorce or judicial separation) is adultery, the
petitioner must show that he is in no way accessory to the respondent‘s
adultery, and that he did not connive at the adultery of the respondent.
4. THESE GROUNDS WILL FALL INTO THE FOLLOWING
THREE DIVISIONS:
(1) Nine grounds based on­fault liability theory‘of divorce. These
grounds are laid down in sub section (1) and only the party aggrieved
may avail of them.
(2) Two grounds based on breakdown theory‘of divorce which are
contained in sub­section (1­A). They may be availed of by any party to
the marriage who is aggrieved or who is guilty.
(3) Four grounds which are special and which can be availed of by a wife
only. These are shown in sub­section (2). Grounds shown above in (1)
and (2) are available in every case of marriage whenever solemnized.
Other than these, the incurable insanity or continuous or intermittent
mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent, and
presumption of death 108 of IEA (respondent not been heard of as alive
for a period of seven years or more) are also grounds of divorce, but,
they are not part of matrimonial offences.
5. MEANING OF CRUELTY.
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The general notion of cruelty is very subjective­ depending on time,
place, persons and other factors also. The legal concept of cruelty, which
is not defined by statute, is generally described as act or conduct of such
a nature as to have caused danger to life, limb or health­ physical or
mental or as to make a reasonable apprehension of such danger.
5.1 The Hindu Marriage Act, 1955
Under the Hindu Marriage Act, 1955 cruelty is a ground for divorce as
well as judicial separation. However, the term ‘cruelty’ is not defined in
the Hindu Marriage Act, 1955. It is through decided cases that the term
has been understood to mean acts of physical as well as mental cruelty.
5.2 Types of Cruelty
Cruelty can be categorised on the basis of two parameters i.e. form in
which it is inflicted and the relationship in which it is inflicted. The
types of cruelty are as follow:
1) Physical and mental cruelty
2) Matrimonial cruelty and cruelty in other relationships
5.3 Physical and mental cruelty
We have already discussed that time and again courts have widened the
scope of term cruelty as it is used in relation to women. Now it is the
settled position of law that cruelty will not only include any physical
harm caused to the women but also any other act which causes mental
and emotional agony. Cruelty may be subtle or brutal; by words,
gestures or by mere silence. It may also be physical or mental. Under all
the Indian matrimonial statues, cruelty can be interpreted with same
meaning. The formulation of cruelty can be made thus: “Cruelty is a
conduct of such a character as to have cause danger to life or health,
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bodily or mental, give rise to reasonable apprehension of such danger.”
On the basis of nature of injury inflicted, broadly, cruelty is divided in
two categories:
(i) Physical cruelty
(ii) Mental cruelty
5.4 Physical Cruelty
Physical violence, or threat with physical violence causing an apparent
apprehension to physical violence, would amount to cruelty. In common
parlance physical violence can be defined as inflicting any kind of bodily
pain or injury. The degree of physical violence which will amount to
cruelty differs in case of matrimonial cruelty and cruelty at other
places. 'Habitual assaults' under the dissolution of Muslim Marriage
Act, 1939 is a ground of divorce. The definition of 'assault' can be found
in Sec. 351 of the Indian Penal Code. 'Causing of grievous hurt' under
the Parsi Marriage and Divorce Act, 1936, is a ground of divorce. The
definition of 'grievous hurt' under the Act is substantially taken from
Sec. 320 of the Indian Penal Code. Beating of wife is the usual act of
physical cruelty .
5.5 Mental Cruelty
Mental cruelty has more devastating effect on health than physical
violence. It directly effects on the emotions of an individual. However, in
case of mental cruelty a particular conduct has to be assessed in light of
a person with normal psychological standards and not with respect to a
person with hyper sensitive nature. Since mental cruelty can be
inflicted in various shapes, no definite parameters can be laid down to
define mental cruelty. However, law on mental cruelty has developed
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through judicial precedents only and some of the judicially recognized
forms of mental cruelty are as under:
5.6 FORMS OF MENTAL CRUELTY
i. False accusation of adultery or unchastity.
ii. Refusal to have marital intercourse.
iii. Undue familiarity with a person of opposite sex.
iv. False charge of impotency.
v. Neglectful conduct and deliberately harassing, indignity and
indifference.
vi. Drunkenness.
vii. False criminal charges.
viii. Deprivation of property.
ix. Threat to commit suicide.
x. Forcing wife to prostitution.
xi. Sexual perversion.
xii. Termination of pregnancy without consent of husband.
xiii. False scandalous, Malicious, baseless charge.
xiv. Reprehensible conduct.
xv. Communication of disease.
5.7 LEGAL PROPOSITION ON THE ASPECT OF CRUELTY
It is settled by catena of decisions that mental cruelty can cause even
more serious injury than the physical harm and create in the mind of
the injured appellant such apprehension as is contemplated in the
Section. It is to be determined on whole facts of the case and the
matrimonial relations between the spouses. To amount to cruelty, there
must be such wilful treatment of the party which caused suffering in
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body or mind either as an actual fact or by way of apprehension in such
a manner as to render the continued living together of spouses harmful
or injurious having regard to the circumstances of the case.
The word ‘cruelty’ has not been defined and 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 and one which is adversely affecting the other. The cruelty may
be mental or physical, intentional or unintentional. There may 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 cruelty alleged may largely depend 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, a young and well educated
woman like the appellant herein is not expected to endure the
harassment in domestic life whether mental, physical, intentional or
unintentional. Her sentiments have to be respected, her ambition and
aspiration taken into account in making adjustment and her basic
needs provided, though grievances arising from temperamental
disharmony. This view was taken by the Kerala High Court in the case
reported in AIR 1991 Kerala 1. In 1993 (2) Hindu L.R. 637, the Court
had gone to the further extent of observing as follows: “Sometime even a
gesture, the angry look, a sugar coated joke, an ironic overlook may be
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more cruel than actual beating” Each case depends on its own facts and
must be judged on these facts. The concept of cruelty has varied from
time to time, from place to place and from individual to individual in its
application according to social status of the persons involved and their
economic conditions and other matters. The question whether the act
complained of was a cruel act is to be determined from the whole facts
and the matrimonial relations between the parties. In this connection,
the culture, temperament and status in life and many other things are
the factors which have to be considered.
The legal concept of cruelty which is not defined by statute is
generally described as conduct of such character as to have caused
danger to life, limb or health (bodily and mental) or to give rise to
reasonable apprehension of such danger. The general rule in all
question of cruelty is that the whole matrimonial relations must be
considered, that rule is of a special value when the cruelty consists not
of violent act but of injurious reproaches, complains accusations or
taunts. It may be mental such as indifference and frigidity towards
wife, denial of a company to her, hatred and abhorrence for wife or
physical, like acts of violence and abstinence from sexual intercourse
without reasonable cause. It must be proved that one partner in the
marriage however mindless of the consequences has behaved in a way
which the other spouse could not in the circumstances be called upon to
endure, and that misconduct has caused injury to health or a
reasonable apprehension of such injury. There are two sides to be
considered in case of cruelty. From the appellant’s side, ought this
appellant to be called on to endure the conduct? From the respondent’s
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side, was this conduct excusable? 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 serious to say that
from a reasonable person’s point of view after a consideration of any
excuse which the respondent might have in the circumstances, the
conduct is such that the petitioner ought not be called upon to endure.
5.8 Hon’ble Supreme Court has defined mental cruelty in V.
Bhagat v. D. Bhagat (1994) 1 SCC 337 as under:
"Mental cruelty in Section 13(1)(i­a) 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
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context in which they were made"
5.9 A. Jayachandra v. Aneel Kaur (2005)2 SCC 22
The Apex Court held that for physical cruelty there can be
tangible and direct evidence but in mental cruelty there may not be
direct evidence. When there is no direct evidence, courts are required to
probe into the mental process and mental effect of incidence that are
brought out in evidence.
5.10 Vinitha Saxena v. Pankaj Pandit 2006)3 SCC 778
The Supreme Court held that what constitutes mental cruelty 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
deleterious effect of it in the mental attitude, necessary for maintaining
a conducive matrimonial home.
5.10 Samar Ghosh v. Jaya Ghosh (2007)4 SCC 511
The Supreme Court observed that no uniform standard can be laid
down for guidance with regard to mental cruelty. 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 lengthy period, where relationship has deteriorated to
an extent that, the wronged party finds it extremely difficult to live
with other party any longer.
5.11 Naveen Kohli v. Neelu Kholi (2006)4 SCC 558
The Supreme Court held that Public Interest demands not only that the
married status should as far as possible, as long as possible and
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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.
5.11 Shobha Rani v. Madhukar Reddi Supreme Court ­(1988)1
SCC 105 held that:
a. Cruelty may be mental or physical, intentional or unintentional. If it
is physical, it will be easy for the court to determine it. If it is mental,
the problem presents difficulty. It is a matter of inference to be drawn
by taking into account the nature of the conduct and its effects on the
complaining spouse. There may be occasions where the conduct itself is
bad enough and it amounts to cruelty; in such cases the impact of such
conduct need not be considered.
b. There has been a marked change in the life around us. The courts
should not search for standards in life, while appreciating mental
cruelty. Matrimonial duties and responsibilities are of varying degrees
from house to house and from person to person. A set of facts,
stigmatised as cruelty in one case may not be so in another case. The
cruelty alleged may depend upon the life style of the parties, their
economic and social conditions, their cultural and human values etc.
c. Cruelty cannot be divided into certain specific categories. Each case
may be different. New types of cruelty may crop up in new cases. The
conduct which is complained of as cruelty by one spouse may not be so,
for the other spouse. Intention is not a necessary element in cruelty.
6. LANDMARK JUDGMENTS ON DIVORCE.
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1. Shayara Bano V. Union of India 2017 (5) Supreme 577
Divorce – Triple Talaq –Constitutionality and legal sanctity – This
form of Talaq is manifestly arbitrary in the sense that marital tie can be
broken capriciously and whimsically by a Muslim man without any
attempt at reconciliation so as to save it – This form of Talaq must be
held to be violative of fundamental right contained under Art. 14 of
Constitution of India. Advocate, appeared on behalf of respondent no.11
(in Writ Petition (C) No.118 of 2016) ­ Dr. Noorjehan Safia Niaz, who
was impleaded as such, by an order dated 29.6.2016. It was submitted
by learned counsel, that talaq­e­biddat‘ was a mode of divorce that
operated instantaneously. It was contended, that the practice of talaq­e­
biddat‘, was absolutely invalid even in terms of Muslim personal law‘ –
Shariat‘. It was submitted, that it was not required of this Court to
strike down the practice of talaq­e­biddat‘, it was submitted, that it
would suffice if this Court merely upholds the order passed by the Delhi
High Court in the Masroor Ahmed case, by giving a meaningful
interpretation to talaq­e­biddat‘, which would be in consonance with
the verses of the Quran and the relevant hadiths‘. It was also asserted
by learned counsel, that Islam from its very inception recognized rights
of women, which were not available to women of othercommunities. It
was pointed out, that the right of divorce was conferred on Muslim
women, far before this right was conferred on women belonging to other
communities. It was asserted, that even in the 7 th century, Islam
granted women the right of divorce and remarriage. The aforesaid legal
right, according to learned counsel, was recognized by the British, when
it promulgated the Shariat Act in 1937. It was submitted, that through
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the above legislation all customs and usages contrary to the Muslim
personal law‘ – Shariat‘, were unequivocally annulled. It was therefore
contended, that while evaluating the validity of talaq­e­biddat‘, this
Court should be conscious of the fact, that the Muslim personal law‘
Shariat‘, was a forward looking code of conduct, regulating various
features in the lives of those who professed the Muslim religion.
2. Sukhendu Das V. Rita Mukherjee 2017 (8) Supreme 33 Special
Marriage Act: Sec. 27, r/w Article 142, Constitution of India.
Wife refusing to participate in proceeding for divorce – Forcing the
husband to stay in a dead marriage – Itself constitutes mental cruelty –
No point in compelling parties to live together in matrimony. The
husband filed a divorce petition. Respondent wife filed written
statement but did not participate in the proceedings. Divorce petition
was dismissed. The husband filed appeal before the High Court which
was also dismissed. However, respondent wife did not appear before the
High Court either. In the present case, the Respondent, who did not
appear before the trial court after filing of written statement, did not
respond to the request made by the High Court for personal
appearance. In spite of service of Notice, the Respondent did not show
any interest to appear in this Court also. This conduct of the
Respondent by itself would indicate that she is not interested in living
with the Appellant. Refusal to participate in proceeding for divorce and
forcing the appellant to stay in a dead marriage would itself constitute
mental cruelty. This court in a series of judgments has exercised its
inherent powers under Article 142 of the Constitution for dissolution of
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a marriage where the Court finds that the marriage is totally
unworkable, emotionally dead, beyond salvage and has broken down
irretrievably, even if the facts of the case do not provide a ground in law
on which the divorce could be granted. Admittedly, the Appellant and
the Respondent have been living separately for more than 17 years and
it will not be possible for the parties to live together and there is no
purpose in compelling the parties to live together in matrimony.
3. Jasmine Charaniya v. Ahmed Charaniya, 2017 (13) Scale 64
Sec. 28­ Contempt of Court Act, 1971 –Section 2(b).
Dispute in the family having arisen after a compromise­ Parties have
prayed for divorce by mutual consent­ This Court dissolves the
marriage by a decree of divorce by consent­ In case the parties have nay
grievances with regard to the working of the terms of settlement, they
shall mention in only before this Court and shall not take any other
recourse before any other forum In this case, court is of the view that
there is no point in relegating the parties to any other forum for a
decree of divorce by mutual consent under the Special Marriage Act,
1954. Contextually, we may also note that the parties have already filed
a petition under Section 28 of the Special Marriage Act, 1954 before the
Principal Judge, Family Court, Patiala House, New Delhi. Accordingly,
Interlocutory Application No. 73033 of 2017 is allowed. The marriage
between Ms. Jasmine Charaniya and Mr. Ahmed Charaniya is dissolved
by a decree of divorce by consent. Since the terms of settlement have
been reduced in the application, the application shall form part of this
Order. In case the parties have any grievances with regard to the
working of the terms of settlement, we make it clear that they shall
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mention it only before this Court and shall not take any other recourse
before any other forum.
4. Narendra V. K. Meena, AIR 2016 SC 4599 (Karnataka) Hindu
Marriage Act Section 13(1)(ia)—Divorce.
Cruelty by wife—Persistent effort of wife to constrain husband to be
separated from family— Constitutes an Act of cruelty —Husband― ‖
entitled to decree of divorce It is not a common practice or desirable
culture for a Hindu son in India to get separated from the parents upon
getting married at the instance of the wife, especially when the son is
the only earning member in the family. A son, brought up and given
education by his parents, has a moral and legal obligation to take care
and maintain the parents, when they become old and when they have
either no income or have a meager income. In India, generally people do
not subscribe to the western thought, where, upon getting married or
attaining majority, the son gets separated from the family. In normal
circumstances, a wife is expected to be with the family of the
husbandafter the marriage. She becomes integral to and forms part of
the family of the husband and normally without any justifiable strong
reason, she would never insist that her husband should get separated
from the family and live only with her. In the instant case, upon
appreciation of the evidence, the trial Court came to the conclusion that
merely for monetary considerations, the Respondent wife wanted to get
her husband separated from his family. The averment of the
Respondent was to the effect that the income of the Appellant was also
spent for maintaining his family. The said grievance of the Respondent
is absolutely unjustified. A son maintaining his parents is absolutely
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normal in Indian culture and ethos. There is no other reason for which
the Respondent wanted the Appellant to be separated from the family ­
the sole reason was to enjoy the income of the Appellant. Unfortunately,
the High Court considered this to be a justifiable reason. In the opinion
of the High Court, the wife had a legitimate expectation to see that the
income of her husband is used for her and not for the family members of
the Respondent husband. Court do not see any reason to justify the said
view of the High Court. As stated hereinabove, in a Hindu society, it is a
pious obligation of the son to maintain the parents. If a wife makes an
attempt to deviate from the normal practice and normal custom of the
society, she must have some justifiable reason for that and in this case,
Court do not find any justifiable reason, except monetary consideration
of the Respondent wife. In our opinion, normally, no husband would
tolerate this and no son would like to be separated from his old parents
and other family members, who are also dependent upon his income.
The persistent effort of the Respondent wife to constrain the Appellant
to be separated from the family would be torturous for the husband
andin our opinion, the trial Court was right when it came to the
conclusion that this constitutes an act of cruelty‘.
5. MANISH GOEL versus ROHINI GOEL (Special Leave Petition
(C) No. 2954 of 2010) FEBRUARY 5, 2010 (Before Hon’ble Mr.
Justice Aftab Alam and Hon’ble Mr. Justice B.S. Chauhan, JJ.)
2010 (2) SCR 414
The statutory period of six months for filing the second petition
under Section 13­B(2) of the Act has been prescribed for providing an
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opportunity to parties to reconcile and withdraw petition for dissolution
of marriage. Learned counsel for the petitioner is not able to advance
arguments on the issue as to whether, statutory period prescribed
under Section 13­B(1)of the Act is mandatory or directory and if
directory, whether could be dispensed with even by the High Court in
exercise of its writ/appellate jurisdiction.
Thus, this is not a case where there has been any obstruction to the
stream of justice or there has been injustice to the parties, which is
required to be eradicated, and this Court may grant equitable relief.
Petition does not raise any question of general public importance. None
of contingencies, which may require this Court to exercise its
extraordinary jurisdiction under Article 142 of the Constitution, has
been brought to our notice in the case at hand.
6. Dr. (Mrs.) Malathi Ravi, M.D. Versus Dr. B.V. Ravi, M.D. CIVIL
APPEAL NO.5862 OF 2014 (Arising out of S.L.P. (C) No. 17 of
2010) (Before Hon’ble Mr. Justice Sudhansu Jyoti
Mukhopadhaya & Hon’ble Mr. Justice Dipak Misra, JJ.)
Marriage as a social institution is an affirmance of civilized social order
where two individuals, capable of entering into wedlock, have pledged
themselves to the institutional norms and values and promised to each
other a cemented bond to sustain and maintain the marital obligation.
It stands as an embodiment for continuance of the human race. Despite
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the pledge and promises, on certain occasions, individual
incompatibilities, attitudinal differences based upon egocentric
perception of situations, maladjustment phenomenon or propensity for
non­adjustment or refusal for adjustment gets eminently projected that
compels both the spouses to take intolerable positions abandoning
individual responsibility, proclivity of asserting superiority complex,
betrayal of trust which is the cornerstone of life, and sometimes a
pervert sense of revenge, a dreadful diet, or sheer sense of envy bring
the cracks in the relationship when either both the spouses or one of the
spouses crave for dissolution of marriage – freedom from the
institutional and individual bond.
The case at hand initiated by the husband for dissolution of
marriage was viewed from a different perspective by the learned Family
Court Judge who declined to grant divorce as the factum of desertion as
requisite in law was not proved but the High Court, considering certain
facts and taking note of subsequent events for which the appellant was
found responsible, granted divorce.
The High Court perceived the acts of the appellant as a reflection
of attitude of revenge in marriage or for vengeance after the reunion
pursuant to the decree for restitution of marriage. Presently to the
factual matrix in entirety and the subsequent events. We are absolutely
conscious that the relief of dissolution of marriage was sought on the
ground of desertion. The submission of the learned counsel for the
appellant is that neither subsequent events nor the plea of cruelty could
have been considered. There is no cavil over the fact that the petition
was filed under Section 13(1) (ib). However, on a perusal of the petition
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it transpires that there are assertions of ill­treatment, mental agony
and torture suffered by the husband. 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. 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.
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 theother party any longer, may amount to mental cruelty.
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 itie. 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.”
7. Suman Kapur vs Sudhir Kapur (2009) 1 SCC 422 Civil Appeal
No. 6582 of 2008 Arising out of Special Leave Petition (Civil) No.
10907 of 2007 (Before Hon’ble Mr. Justice C.K. Thakker &
Hon’ble Mr. Justice D.K. Jain, JJ.)
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Abortion by a woman without her husband’s knowledge and
consent will amount to mental cruelty and a ground for divorce, the
Supreme Court has held. “Mental cruelty is a state of mind. The feeling
of deep anguish, disappointment, frustration in one spouse caused by
the conduct of the other for a long time may lead to mental cruelty. A
sustained course of abusive and humiliating treatment calculated to
torture, discommode or render life miserable for the spouse,” said a
Bench consisting of Justices C.K. Thakker and D.K. Jain, It was held:
“The treatment complained of and the resultant danger or apprehension
must be very grave, substantial and weighty. 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.”
The conduct must be much more than jealousy, selfishness,
possessiveness, which caused unhappiness and dissatisfaction and
emotional upset but might not be a reason for grant of divorce on the
ground of mental cruelty. Absence of intention It was held: “To establish
legal cruelty, it is not necessary that physical violence should be used.
Continuous cessation of marital intercourse or total indifference on the
part of the husband towards marital obligations would lead to legal
cruelty. 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. Mens rea 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.”
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23. 23
“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.”
In the instant case, Suman Kapur was aggrieved at the decree of
divorce granted against her by a trial court and confirmed by the Delhi
High Court. Both courts gave a finding that her three abortions without
the knowledge and consent of her husband, Sudhir Kapur, was a valid
ground for divorce. Disposing of the appeal, the Bench noted that
Sudhir Kapur got remarried on March 5, 2007 before the expiry of the
period of 90 days for filing appeal before this court and a child was born
from the second marriage. “Since, we are confirming the decree of
divorce on the ground of mental cruelty as held by both courts, i.e. the
trial court as well as the High Court, no relief can be granted so far as
the reversal of decree of the courts below is concerned. At the same
time, however, in our opinion, the respondent­ husband should not have
remarried before the expiry of period stipulated for filing appeal. Ends
of justice would be met if we direct the respondent to pay Rs. 5 lakh to
the appellant.”
8. Naveen Kohli vs Neelu Kohli , (2006) 4 SCC 558 (Before
Hon’ble Mr. Justice B.N. Agrawal, Hon’ble Mr. Justice A.K.
Mathur & Hon’ble Mr. Justice Dalveer Bhandari, JJ.)
It was held that the marriage had been wrecked beyond any hope
of salvation, the court held that public interest and the interests of all
concerned lay in the recognition, in law, of this fact. That even though
the wife was not agreeable to a divorce by mutual consent and seemed
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to have resolved to live in agony only to make the life of her husband a
miserable hell, public interest lay in the dissolution of the marriage
bond. Keeping a sham of a marriage alive in law was held to be more
conducive to immorality and potentially more prejudicial to the public
interest than the dissolution of marriage. Not granting a divorce under
such circumstances was held to be disastrous for the parties. The
granting of divorce would offer them the chance, both psychologically
and emotionally, to settle down after a while and start a new chapter in
life. The Supreme Court directed that the marriage between Naveen
andNeelu Kohli be dissolved, subject to the husband giving Rs 25 lakh
to the wife as permanent maintenance.
9. Durga Prasanna Tripathy vs Arundhati (2005) 7 SCC 353
(Before Hon’ble Mrs. Justice Ruma Pal & Hon’ble Mr. Justice
A.R. Lakshmanan, JJ.)
This appeal is directed against the judgment dated 23.12.2003
passed by the High Court of Orissa at Cuttack in Civil Appeal No. 10 of
2001 whereby the High Court allowing the appeal filed by the
respondent­herein/wife under Section 13(1) of the Hindu Marriage Act,
1955 on the ground of cruelty and desertion . This is a most unfortunate
case where both the parties could not carry on their marital ties beyond
a period of 7 months of their marriage. The marriage between the
parties took place on 05.03.1991 and it is the specific case of the
appellant that the respondent deserted him on 22.10.1999 and never
again returned to her matrimonial home. Today the position is that the
parties have been living separately for almost 14 years which means
that there is an irretrievable breakdown of marriage and that because
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25. 25
of such breakdown of marriage the marriage between the parties has
been rendered a complete deadwood. Learned counsel for the appellant
argued that no useful purpose will be served by keeping such a
marriage alive on paper, which would only aggravate the agony of the
parties. Therefore, he would pray that in the fitness of things and in the
interest of justice, the marriage between the parties is forthwith
terminated by a decree of divorce. We have perused the orders passed
by the Family Court and also of the High Court. Both the Family Court
as well as the High Court made efforts to bring about a
reconciliation/rapprochement between the parties. The Family Court in
this regard gave a clear finding that in spite of good deal of endeavour
to effect a reconciliation the same could not be effected because of the
insistence of the respondent to remain separately from her in­laws. It
was totally an impracticable solution.
In our view that 14 years have elapsed since the appellant and the
respondent have been separated and there is no possibility of the
appellant and the respondent resuming the normal marital life even
though the respondent is willing to join her husband. There has been an
irretrievable breakdown of marriage between the appellant the
respondent. Both parties have crossed the point of no return. A
workable solution is certainly not possible. Parties cannot at this stage
reconcile themselves and live together forgetting their past as a bad
dream. We, therefore, have no other option except to allow the appeal
and set aside the judgment of the High Court and affirming the order of
the Family Court granting decree for divorce. The Family Court has
directed the appellant to pay a sum of Rs. 50,000/­ towards permanent
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26. 26
alimony to the respondent and pursuant to such direction the appellant
had deposited the amount by way of bank draft. Considering the status
of parties and the economic condition of the appellant who is facing
criminal prosecution and out of job and also considering the status of
the wife who is employed, we feel that a further sum of Rs. 1 lakh by
way of permanent alimony would meet the ends of justice. This shall be
paid by the appellant within 3 months from today by an account payee
demand draft drawn in favour of the respondent Arundhati Tripathy
and the dissolution shall come into effect when the demand draft is
drawn and furnished to the respondent.
10. Vinita Saxena vs Pankaj Pandit (2006) 3 SCC 778 (Before
Hon’ble Mrs. Justice Ruma Pal & Hon’ble Mr. Justice A.R.
Lakshmanan, JJ.)
As to what constitute the required mental cruelty for 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.
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11. A. Jayachandra vs Aneel Kaur (2005) 2 SCC 22 (Before
Hon’ble Mrs. Justice Ruma Pal, Hon’ble Mr. Justice Arijit
Pasayat & Hon’ble Mr. Justice C.K. Thakker, JJ.)
Parties to a marriage tying nuptial knot are supposed to bring
about the union of souls. It creates a new relationship of love, affection,
care and concern between the husband and wife. According to Hindu
Vedic philosophy it is sanskar a sacrament; one of the sixteen important
sacraments essential to be taken during one’s lifetime. There may be
physical union as a result of marriage for procreation to perpetuate the
lineal progeny for ensuring spiritual salvation and performance of
religious rites, but what is essentially contemplated is union of two
souls. Marriage is considered to be a junction of three important duties
i.e. social, religious and spiritual.
This case presents a very unpleasant tale of two highly educated
professionals (doctors by profession) fighting a bitter matrimonial
battle. 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
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28. 28
a precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the type as
to satisfy the conscience of the Court that the relationship between the
parties had deteriorated to such an extent due to the conduct of the
other spouse that it would be impossible for them to live together
without mental agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute cruelty
within the meaning of Section 10 of the Act. Mental cruelty may consist
of verbal abuses and insults by using filthy and abusive language
leading to constant disturbance of mental peace of the other party. If
acts subsequent to the filing of the divorce petition can be looked into to
infer condonation of the aberrations, acts subsequent to the filing of the
petition can be taken note of to show a pattern in the behaviour and
conduct. In the instant case, after filing of the divorce petition a suit for
injunction was filed, and the respondent went to the extent of seeking
detention of the respondent. She filed a petition for maintenance which
was also dismissed. Several caveat petitions were lodged and as noted
above, with wrong address. The respondent in her evidence clearly
accepted that she intended to proceed with the execution proceedings,
and prayer for arrest till the divorce case was finalized. When the
respondent gives priority to her profession over her husband’s freedom
it points unerringly at disharmony, diffusion and disintegration of
marital unity, from which the Court can deduce about irretrievable
breaking of marriage. even if marriage has broken down irretrievably
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29. 29
decree of divorce cannot be passed. In all these cases it has been
categorically held that in extreme cases the Court can direct dissolution
of marriage on the ground that the marriage broken down irretrievably
as is clear from paragraph 9 of Shiv Sunder’s case (supra). The factual
position in each of the other cases is also distinguishable.
It was held that long absence of physical company cannot be a
ground for divorce if the same was on account of husband’s conduct. In
Shiv Sunder’s case (supra) it was noted that the husband was leading
adulterous life and he cannot take advantage of his wife shunning his
company. Though the High Court held by the impugned judgment that
the said case was similar, it unfortunately failed to notice the relevant
factual difference in the two cases. It is true that irretrievable breaking
of marriage is not one of the statutory grounds on which Court can
direct dissolution of marriage, this Court has with a view to do complete
justice and shorten the agony of the parties engaged in long drawn legal
battle, directed in those cases dissolution of marriage. But as noted in
the said cases themselves those were exceptional cases. In the aforesaid
legal and factual background the inevitable conclusion is that the
appellant is entitled to a decree of divorce and we direct accordingly.
12. Parveen Mehta vs Inderjit Mehta (2002) 5 SCC 296 (Before
Hon’ble Mr. Justice D.P. Mohapatra & Hon’ble Mr. Justice
Brijesh Kumar, JJ.)
What is the meaning and import of the expression ‘cruelty’ as a
matrimonial offence is the core questionn on the determination of which
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30. 30
depends the result and the fate of this case. We find is that right from
the beginning the matrimonial relationship between the parties was not
normal; the spouses stayed together at the matrimonial home for a
short period of about six months; the respondent had been trying to
persuade the appellant and her parents to agree to go for proper
medical treatment to improve her health so that the parties may lead a
normal sexual life; all such attempts proved futile. The appellant even
refused to subject herself to medical test as advised by the doctor. After
21st June, 1987 she stayed away from the matrimonial home and the
respondent was deprived of her company. In such circumstances, the
respondent who was enjoying normal health was likely to feel a sense of
anguish and frustration in being deprived of normal cohabitation that
every married person expects to enjoy and also social embarrassment
due to the behavior of the appellant. Further, the conduct of the
appellant in approaching the police complaining against her husband
and his parents and in not accepting the advice of the superior judicial
officer Mr.S.K.Jain and taking a false plea in the case that she had
conceived but unfortunately there was miscarriage are bound to cause a
sense of mental depression in the respondent. The cumulative effect of
all these on the mind of the respondent, in our considered view,
amounts to mental cruelty caused due to the stubborn attitude and
inexplicably unreasonable conduct of the appellant.
13. Savitri Pandey vs Prem Chandra Pandey (2002) 2 SCC 73
(Before Hon’ble Mr. Justice R.P. Sethi & Hon’ble Mr. Justice
Y.K. Sabharwal, JJ.)
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Treating the petitioner with cruelty is a ground for divorce under
Section 13(1)(i­a) of the Act. Cruelty has not been defined under the Act
but in relation to matrimonial matters it is contemplated as a conduct of
such type which endangers the living of the petitioner with the
respondent. Cruelty consists of acts which are dangerous to life, limb or
health.
Cruelty for the purpose of the Act means where one spouse has so
treated the other and manifested such feelings towards her or him as to
have inflicted bodily injury, or to have caused reasonable apprehension
of bodily injury, suffering or to have injured health. Cruelty may be
physical or mental. Mental cruelty is the conductof other spouse which
causes mental suffering or fear to the matrimonial life of the other.
“Cruelty”, therefore, postulates a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in his or her mind that it
would be harmful or injurious for the petitioner to live with the other
party. Cruelty, however, has to be distinguished from the ordinary wear
and tear of family life. It cannot be decided on the basis of the
sensitivity of the petitioner and has to be adjudged on the basis of the
course of conduct which would, in general, be dangerous for a spouse to
live with the other. In the instant case both the trial court as well as the
High Court have found on facts that the wife had failed to prove the
allegations of cruelty attributed to the respondent Desertion”, for the
purpose of seeking divorce under the Act, means the intentional
permanent forsaking and abandonment of one spouse by the other
without that other’s consent and without reasonable cause. In other
words it is a total repudiation of the obligations of marriage. Desertion
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32. 32
is not the withdrawal from a place but from a state of things. Desertion,
therefore, means withdrawing from the matrimonial obligations, i.e.,
not permitting or allowing and facilitating the cohabitation between the
parties. The proof of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises the sexual
relationship between man and woman in the society for the
perpetuation of race, permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children. Desertion is not a single
act complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case. After
referring to host of authorities and the views of various authors, this
Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR
1957 SC 176] held that if a spouse abandons the other in a state of
temporary passions, for example, anger or disgust without intending
permanently to cease cohabitation, it will not amount to desertion the
appellant herself is trying to take advantage of her own wrong and in
the circumstances of the case, the marriage between the parties cannot
be held to have become dead for invoking the jurisdiction of this Court
under Article 142 of the Constitution for dissolving the marriage.
14. G.V.N. Kameswara Rao vs G. Jabilli (2002) 2 SCC 296 (Before
Hon’ble Mr. Justice D.P. Mohapatra & Hon’ble Mr. Justice K.G.
Balakrishnan, JJ.)
The husband who had been unsuccessfully fighting litigation for
the past more than 15 years for snapping his marital ties with the
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33. 33
respondent wife is the appellant before us. various incidents brought
out in the evidence would show that the relationship between the
parties was irretrievably broken, and because of the non­cooperation
and the hostile attitude of the respondent, the appellant was subjected
to serious traumatic experience which can safely be termed as ‘cruelty’
coming within the purview of Section 13(1)(ia) of the Hindu Marriage
Act. Therefore, we hold that the appellant is entitled to the decree for
dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage
Act.
Under Section 13(1) (ia) of the Hindu Marriage Act, on a petition
presented either by the husband or wife, the marriage could be
dissolved by a decree of divorce on the ground that the other party has,
after the solemnization of the marriage, treated the petitioner with
cruelty. ‘Cruelty’ is not defined in the Act. Some of the provisions of the
Hindu Marriage Act were amended by Hindu Marriage Laws
(Amendment) Act, 1976. Prior to the amendment, ‘cruelty’ was one of
the grounds for judicial separation under Section 10 of the Act. Under
that Section, “cruelty” was given an extended meaning by using an
adjectival phrase, viz. “as to cause reasonable apprehension in the mind
of the petitioner that it will be harmful or injurious for the petitioner to
live with the other party”. By the Amendment Act of 1976, “cruelty” was
made one of the grounds for divorce under Section 13. The omission of
the words, which described ‘cruelty’ in the unamended Section 10 of the
Hindu Marriage Act, has some significance in the sense that it is not
necessary to prove that the nature of the cruelty is such as to cause
reasonable apprehension in the mind of the petitioner that it would be
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34. 34
harmful for the petitioner to live with the other party. English Courts in
some of the earlier decisions had attempted to define “cruelty” as an act
which involves conduct of such a nature as to have caused damage to
life, limb or health or to give rise to reasonable apprehension of such
danger. But we do not think that such a degree of cruelty is required to
be proved by the petitioner for obtaining a decree for divorce. Cruelty
can be said to be an act committed with the intention to cause
sufferings to the opposite party. Austerity of temper, rudeness of
language, occasional outburst of anger, may not amount to cruelty,
though it may amount to misconduct. “The mental cruelty in Section
13(1)(ia) 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
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35. 35
is a case of accusations and allegations, regard must be had to the
context in which they were made.”
We do not think that this is a case, where the appellant could be
denied relief by invoking Section 23(1)(a) of the Hindu Marriage Act. On
the other hand, various incidents brought out in the evidence would
show that the relationship between the parties was irretrievably
broken, and because of the non­cooperation and the hostile attitude of
the respondent, the appellant was subjected to serious traumatic
experience which can safely be termed as ‘cruelty’ coming within the
purview of Section 13(1)(ia) of the Hindu Marriage Act. Therefore, we
hold that the appellant is entitled to the decree for dissolution of
marriage under Section 13(1)(ia) of the Hindu Marriage Act. However,
we make it clear that any order of maintenance passed in favour of the
respondent will stand unaffected by this decree for dissolution of the
marriage. We also make it clear that if any rights have been accrued to
the respondent in the joint assets of both, she would be at liberty to take
appropriate action to enforce such right.
15. MAHARANI KUSUMKUMARI AND ANR. Vs. SMT.
KUSUMKUMARI JADEJA AND ANR. 1991 SCR (1) 193 1991 SCC
(1) 582 JT 1991 (1) 278 1991 SCALE (1)103 (Before Hon’ble Mr.
Justice L.M. Sharma & Hon’ble Mr. Justice M.M. Punchhi, JJ.)
Hindu Marriage Act, 1955: Section II­Petition to declare marriage
a nullity­Whether maintainable after death of petitioner’s spouse.
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Practice and Procedure: Proceedings involving issues relating to marital
status­Question dependent upon nature of action and the law governing
the same­Provisions of the relevant statute very material.
It was contended on behalf of the appellants that having regard to
the very special relationship between husband and wife,a marriage
cannot be dissolved or declared to be a nullity unless both of them are
parties thereto. The martial status of a person sands on a much higher
footing than other positions one may hold in the society and cannot be
allowed to be challenged lightly,and that the marriage of a person,
therefore, cannot be declared as nullity after his death when he does no
have an opportunity to contest. Reliance was placed upon the language
of Section 11 of the Hindu Marriage Act. On behalf of the respondent, it
was pointed out that having regard to the language of Section 16 of the
Hindu Marriage Act as it it stood before its amendment in 1976,he
children born of the respondent would not have been entitled to the
benefit of the section in absence of a decree declaring the marriage of
their parents as nullity, and this was precisely the reason that the
respondent had to commence the present litigation On the question:
whether a petition under Section 11 of the Hindu Marriage Act, 1955
for declaring the marriage of the petitioner as a nullity is maintainable
after the death of the petitioner’s spouse.
Dismissing the appeal, this Court, HELD: An application under
Section11 of the Hindu Marriage Act, 1955 before its amendment in
1976, was maintainable at the instance of a party to the marriage even
after the death of the other spouse.
In the instant case, the proceeding was started in 1974 that is, before
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37. 37
the amendment was made in the Hindu Marriage Act,1955. Section II
did not contain the words “against the other party”. At that time all
that was required was that the application had to be filed by a party to
the marriage under challenge. On the plain language of the section as it
stood then,it could not be claimed that in absence of the other spouse as
a party to the proceedings, the same would not be maintainable. By the
amendment in section 11, in so far the cases where marriage can be
declared as nullity, the application of the rule protecting the legitimacy
was widened. If that had not been,the children born of such marriages
would have been deprived of the advantage on the death of either of the
parents. The intention of the legislature in enacting section 16 was to
protect the legitimacy of the children who would have been legitimate if
the Act had not been passed in 1955. There is no reason to interpret
section 11 in a manner which would narrow down its field. With respect
to the nature of the proceedings, what the court has to do in an
application under section 11 is not to bring about any change in the
marital status of the parties. The effect of granting a decree of nullity is
to discover the flow in the marriage at the time of its performance and
accordingly to grant a decree declaring it to be void.
16.DHARMENDRA KUMAR Vs. USHA KUMAR 1977 AIR 2218 ,
1978 SCR (1) 315, 1977 SCC (4) 12 (Before Hon’ble Mr. Justice
A.C. Gupta & Hon’ble Mr. Justice Syed Murtaza Fazalali, JJ.)
Hindu Marriage Act 1955­Section 13(1A)(ii).­23(1)(a)­If divorce
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can be obtained for absence of restitution of conjugal rights after decree
for restitution is granted by a person who refuses to have restitution­
Whether such a conduct amounts to a wrong within the meaning of sec.
23 (1) (a) of the Act. The respondent­wife was granted a decree for
restitution of conjugal rights on her application under s. 9 of Hindu
Marriage Act, 1955 by Additional Senior Sub­Judge, Delhi the
respondent presented a petition under s. 13(1A) (ii) of the Act in the
Court of Additional District Judge, Delhi for dissolution of the marriage
by a decree of divorce­stating therein that there bad been no restitution
of conjugal rights between the parties after the passing of the decree for
restitution of conjugal rights. The appellant­husband, in his written
statement admitted that there had been no restitution of conjugal
rights, between the parties after the passing of the decree in earlier
proceedings, but stated that he made attempts to comply with the
decree dated 27th August 77. by writing several registered letters
inviting the respondent to live with him to which, according to him she
never replied. The husband contended that she herself prevented the
restitution of conjugal rights and was making a capital out of her own
wrong which she was not entitled to do. Section 13 as it stood before the
1964 amendment permitted only the spouse who had obtained the
decree for restitution of conjugal rights to apply for relief by way of
divorce. The party against whom the decree was passed was not given
that right. The relief which is available to the spouse against whom a
decree for restitution of conjugal rights has been passed cannot
reasonably be denied to the one who does not insist on compliance with
the decree passed in his or her favour. In order to be a “wrong” within
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39. 39
the meaning of s. 23(1)(a) the conduct alleged has to be something more
than a mere disinclination to agree to an offer of reunion, it must be
misconduct serious enough to justify denial of the relief to which the
husband or the wife is otherwise entitled. Mere non­compliance with a
decree for restitution does not constitute wrong within the meaning of
section 23(1)(a).
17. NARAYAN GANESH DASTANE Vs. SUCHETA NARAYAN
DASTANE 1975 AIR 1534 1975 SCR (3) 967 1975 SCC (2) 326
(Before Hon’ble Mr. Justice Y.V. Chandrachud, Hon’ble Mr.
Justice P.K. Goswami & Hon’ble Mr. Justice N.L. Untwalia, JJ.)
Hindu Marriage Act­­Section 10(1)(b) and 23(1)(a)(b)­­Meaning of
cruelty­­Burden of proof in matrimonial matters­­Whether beyond
reasonable doubt­­Condonation­­of cruelty—Whether sexual intercourse
amounts to condonation—Whether condonation is conditional­­Revival
of cruelty.
Code of Civil Procedure­­Section 100 and 103­­Powers of High
Court in second appeal. The appellant husband filed a petition for
annulment of marriage on the ground of fraud, for divorce on the
ground of unsoundness of mind and for judicial separation on the
ground of cruelty. The appellant and respondent possess high
educational qualifications and they were married in 1956. Two children
were born of the marriage one in 1957 and the other in 1959.
The Trial Court rejected the contention of fraud and unsoundness
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40. 40
of mind. It, however, held the wife guilty of cruelty and on that ground
passed a decree for judicial separation. Both sides went in appeal to the
District Court which dismissed the husband’s appeal and allowed the
wife’s. The husband then filed a Second Appeal in the High Court. The
High Court dismissed that appeal. On appeal to this Court, Neither s.10
nor s. 23 of the Hindu Marriage Act requires that the petitioner must
prove his case beyond reasonable doubt S. 23 confers on the court the
power to pass a decree if it is satisfied on the matters mentioned in
Clauses (a) to (e) of that 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. The society has a stake in the institution of marriage
and, therefore, the erring spouse is treated not as a mere defaulter but
as an offender. But this social philosophy, though it may have a bearing
on the need to have the clearest proof of an allegation before it is
accepted as a ground for­ the dissolution of marriage, it has no bearing
on the standard of proof in matrimonial cases. In England, a view was
at one time taken that a petitioner in a matrimonial petition must
establish his or her case beyond a reasonable doubt but the House of
Lords in Blyth v. Blyth has held that the grounds of divorce or the bars
to the divorce May be proved by a preponderance of probability.
On the question of condonation of cruelty, a specific provision of a
specific enactment has to be interpreted, namely s. 10(1) (b). The
enquiry, therefore, has to be whether the conduct charged as cruelty is
of such a character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious for him to
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live with the respondent. It is not necessary, as under the English Law,
that the cruelty must be of such a character as to cause danger to life,
limb or health or as to give rise to a reasonable apprehension of such a
danger. Acts like the tearing of the Mangal Sutra, locking out the
husband when he is due to arrive from the office, rubbing of chilly
powder on the tongue of an infant child, beating a child mercilessly
while in high fever and switching on the light at night and sitting by
the bedside of the husband merely to nag him are acts which tend to
destroy the legitimate ends and objects of matrimony. The conduct of
wile amounts to cruelty within the meaning of s. 10(1) (b) of the Act.
The threat that she would put an end to her own life or that she will set
the house on fire, the threat that she will make the husband lose his job
and have the matter published in newspapers and the persistent abuses
and insults hurled at the husband and his parents are all of so grave an
order as to ‘imperil the appellant’s sense of personal safety, mental
happiness, job satisfaction and reputation.
18. Lachman Utamchand Kiriplani vs Meena Alias Mota
Equivalent citations: 1964 AIR 40, 1964 SCR (4) 331 (Before
Hon’ble Mr. Justice Bhuvneshwar P. Sinha, CJ. Hon’ble Mr.
Justice Sudhi Ranjan Das, Hon’ble Mr. Justice K. Subbarao,
Hon’ble Mr. Justice Raghubar Dayal, Hon’ble Mr. Justice N.
Rajagopala Ayyangar, JJ.)
Husband and wife­judicial separation­Desertion without just­
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42. 42
cause­offer to return to matrimonial home must be shown to be bona
fide­Petition for judicial separation­Burden of proof­Hindu Marriage
Act, 1955 (25 of 1955), s. 10(1)(a). Where an application is made under
s. 10(1)(a) of the Hindu Marriage Act, 1955, for a decree for judicial
separation on the ground of desertion, the legal burden is upon the
petitioning spouse to establish by convincing evidence beyond any
reasonable doubt that the respondent intentionally forsook and
abandoned him or her without reasonable cause. The petitioner must
also prove that there was desertion throughout the statutory period and
there was no bona fide attempt on the respondent’s part to return to the
matrimonial home and that the petitioner did not by his or her action
by word or conduct provide a just cause to the other spouse to desist
from, making any attempt at reconciliation or resuming cohabitation;
­but where, however, on the facts it is clear that the conduct of the
deserted spouse has had no such effect on the mind of the deserting
spouse there is no rule of law that desertion terminates by reason of the
conduct of the deserted spouse. An offer to return to the matrimonial
home after sometime, though desertion had started, if genuine and
sincere and represented his or her true feelings and intention, would
bring to an end the desertion because thereafter the animus deserendi
would be’ lacking, though the factum of separation might continue; but
on the other hand, if the offer was not sincere and there was in reality
no intention to return, the mere fact that letters were written
expressing such an intention would not interrupt the desertion from
continuing.
In the present case, the evidence was clear that the respondent
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43. 43
left her matrimonial home with the permission of her husband and his
parents and that it was not possible to infer from the evidence given by
Dr. Lulla that the respondent decided to abandon the appellant. The
letters demonstrated beyond any reasonable doubt that the wife did not
demonstrated beyond band with the requisite animus, but on the other
hand, showed her willingness to go over to Bombay as soon as she
regained her health. In view of the false allegations made by the
appellant in his letter dated April 1, 1954, in which he charged the
respondent with unchastity and leading a fast and reckless life, from
that date the desertion, if any, on the part of the respondent came to an
end and from that date the appellant was guilty of desertion.
19. Bipin Chander Jaisinghbhai Shah vs Prabhawati Equivalent
Citations: 1956 Scr 838 Date of Judgment: 19/10/1956 (Before
Hon’ble Mr. Justice Bhuvneshwar P. Sinha, Hon’ble Mr. Justice
B. Jagannadhadas & Hon’ble Mr. Justice T.L. Venkatarama
Aiyyar, JJ.)
HMA­section 13­ divorce­ ground of desertion ­ For the offence of
desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely
(1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end (animus
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44. 44
deserendi).
Similarly two elements are essential so far as the deserted spouse is
concerned:
(1) the absence of consent, and
(2) absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The
petitioner for divorce bears the burden of proving
those elements in the two spouses respectively....
Desertion is a matter of inference to be drawn from the facts and
circumstances of each case. The inference may be drawn from certain
facts which may not in another case be capable of leading to the same
inference; that is to say, the facts have to be viewed as to the purpose
which is revealed by those acts or by conduct and expression of
intention, both anterior and subsequent to the actual acts of separation.
If, in fact, there has been a separation the essential question always is
whether that act could be attributable to an animus deserendi. The
offence of desertion commences when the fact of separation and the
animus deserendi co­exist. But it is not necessary that they should
commence at the same time. The de facto separation may have
commenced without the necessary animus deserendi coincide in point of
time.
20. U.Sree vs U.Srinivas CIVIL APPEAL NOS. 8927­8928 OF 2012
Decided on 11 December, 2012 (Before Hon’ble Mr. Justice K.S.
Radhakrishnan & Hon’ble Mr. Justice Dipak Misra, JJ.) [Arising
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45. 45
out of S.L.P. (Civil) Nos. 37449­37450 of 2012 ( CC.5877­5878 of
2012)]
The human mind is extremely complex and human behaviour is
equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one definition is
almost impossible. What is cruelty in one case may not amount to
cruelty in the other case. The concept of cruelty differs from person to
person depending upon his upbringing, level of sensitivity, educational,
family and cultural background, financial position, social status,
customs, traditions, religious beliefs, human values and their value
system. ....the concept of mental cruelty cannot remain static; it is
bound to change with the passage of time, impact of modern culture
through print and electronic media and value system, etc. etc.
What may be mental cruelty now may not remain a mental cruelty
after a passage of time or vice versa. There can never be any
straitjacket formula or fixed parameters for determining mental cruelty
in matrimonial matters. The prudent and appropriate way to adjudicate
the case would be to evaluate it on its peculiar facts and
circumstances. ....In matrimonial relationship, cruelty would obviously
mean absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to various
outbursts of behaviour which can be termed as cruelty. Sometime
cruelty in a matrimonial relationship may take the form of violence,
sometime it may take a different form. At times, it may be just an
attitude or an approach. Silence in some situations may amount to
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46. 46
cruelty.
21.Vishwanat vs Sau. Sarla Vishwanath Agrawal CIVIL APPEAL
NO. 4905 OF 2012 Decided on 4 July, 2012 (Before Hon’ble Mr.
Justice Deepak Verma & Hon’ble Mr. Justice Dipak Misra, JJ.)
(Arising out of S.L.P. (Civil) No. 16528 of 2007)
Regard being had to the aforesaid, we have to evaluate the
instances. In our considered opinion, a normal reasonable man is bound
to feel the sting and the pungency. The conduct and circumstances
make it graphically clear that the respondent­wife had really
humiliated him and caused mental cruelty. Her conduct clearly exposits
that it has resulted in causing agony and anguish in the mind of the
husband. She had publicised in the newspapers that he was a
womaniser and a drunkard. She had made wild allegations about his
character. She had made an effort to prosecute him in criminal
litigations which she had failed to prove. The feeling of deep anguish,
disappointment, agony and frustration of the husband is obvious. It can
be stated with certitude that the cumulative effect of the evidence
brought on record clearly establish a sustained attitude of causing
humiliation and calculated torture on the part of the wife to make the
life of the husband miserable. The husband felt humiliated both in
private and public life. Indubitably, it created a dent in his reputation
which is not only the salt of life, but also the purest treasure and the
most precious perfume of life. It is extremely delicate and a cherished
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47. 47
value this side of the grave. It is a revenue generator for the present as
well as for the posterity. Thus analysed, it would not be out of place to
state that his brain and the bones must have felt the chill of
humiliation. The dreams sweetly grafted with sanguine fondness with
the passage of time reached the Everstine disaster, possibly, with a vow
not to melt. The cathartic effect looked like a distant mirage. The cruel
behaviour of the wife has frozen the emotions and snuffed out the bright
candle of feeling of the husband because he has been treated as an
unperson. Thus, analysed, it is abundantly clear that with this mental
pain, agony and suffering, the husband cannot be asked to put up with
the conduct of the wife and to continue to live with her. Therefore, he is
entitled to a decree for divorce.
22.USHA RATILAL DAVE VERSUS ARUN B. DAVE Gujarat High
Court First Appeal No. 1484 of 1981 , 1983 SCC OnLine Guj 93 :
1984 GLH 333 : (1984) 25 (1) GLR 81 Bench: Hon’ble Mr. Justice
V.V Bedarkar
HINDU MARRIAGE ACT : S.10, S.13(1), S.23, S.23(1), S.9
­­whether a decree of Legal Separation obtained in Illinois (U. S. A.)
Court be availed of in Indian Court for dissolution of marriage by a
decree of divorce under sec. 13 of the Hindu Marriage Act 1955 when
both the spouses are Hindus by Personal Law and married in India
according to Hindu rites­ ­­ from this reference to Corpus Juris
Secundum it is very clear that the connotation legal separation is akin
to judicial separation in our country and therefore it cannot be said that
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this is not a judicial separation as envisaged by Indian Law . the order
of dissolution of marriage by a decree of divorce passed by the learned
trial Judge is quite justified.
23. (Sadhana Satish Kolvankar Vs Satish Sachidanand
Kolvankar) 2005(2) Civil Court Cases 75 (Bombay) Hindu
Marriage Act, 1955, Ss.12(1)(a) and 13(1)(a) ­ Divorce petition by
husband on ground of cruelty and prayer for decree of nullity on ground
of non consummation of marriage owing to impotence of wife ­ Doctor
opined that although wife has had sexual intercourse but she was not
habituated to it ­ Plea of non consummation of marriage, therefore, is
not available ­ However, ground of cruelty stands proved as wife during
the pendency of divorce petition had filed criminal complaint u/s 498­A
IPC against husband, his aged mother and sister­in­law which was
dismissed ­ Parties lived together for a few months and there were
constant quarrels ­ Divorce granted on ground of cruelty ­ Husband
directed to pay maintenance of Rs.1200/­ per month.
24. (Ram Kumar @ Ramender Kumar Vs Smt.Raksha @ Galabo)
2003(2) Civil Court Cases 70 (P&H) Hindu Marriage Act, 1955,
S.13, Hindu Marriage (Punjab) Rules, 1956, R.10 ­ Adultery ­ Non
impleading of adultator as a co­respondent ­ Petition is not
maintainable for not joining necessary party.
25. (Rakesh Sharma Vs Surbhi Sharma) AIR 2002 Rajasthan 138
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Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Act of wife leaving
matrimonial home without husband's consent and not returning
thereafter ­ Amounts to cruelty.
26.(A.Jayachandra Vs Aneel Kaur) 2005(1) Apex Court
Judgments 318 (S.C.) : 2005(1) Civil Court Cases 402 (S.C.) Hindu
Marriage Act, 1955, S.13 ­ Cruelty ­ Can be physical or mental ­
Conduct complained of should be “grave and weighty” so as to come to
the conclusion that it is not reasonable expected to live with the other
spouse ­ It must be something more serious than “ordinary wear and
tear of married life”.
27.(Mayawanti Vs Bina Ram) 2004(3) Civil Court Cases 59 (P&H)
Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Extent of ­ Should be of
such a degree so as to cause an apprehension of danger to life, limb or
health, physical or mental ­ Allegation of excessive drinking and
addiction to sulfa but the same not proved ­ Divorce petition dismissed.
28. (Ramesh Kumar Bansal Vs Smt.Santosh Kumari Singla)
2003(2) Civil Court Cases 306 (P&H) Hindu Marriage Act, 1955,
S.13 ­ Cruelty ­ False allegations ­ Allegations of serious nature ­
Allegations not established and found to be concocted ­ Held, false
allegations in itself amounts to cruelty.
29. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ False and baseless
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50. 50
allegations by wife in reply to notice about bad character not only
against husband but also against his other family members ­ Amounts
to cruelty. (Anita Vs Krishnakuamr) AIR 2003 Bombay 273
30. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Husband alleged to be
in the habit of excessive drinking and addicted to sulfa ­ There is no
nothing to establish this aspect ­ Cannot be taken as an independent
ground for the grant of matrimonial relief. (Mayawanti Vs Bina Ram)
2004(2) Civil Court Cases 257 (P&H)
31. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Husband living at
Delhi and wife employed at Meerut ­ Wife not ready to live with
husband and even not visiting him ­ Lodging FIR against him for
offence u/s 498­A, 323 and 506 PC maliciously and without any
reasonable cause ­ Such conduct of wife amounts to mental cruelty ­
Acts not condoned by husband ­ Husband entitled to decree of divorce.
(Dr.P.K.Tomar Vs Smt.Archana) AIR 2003 Allahabad 214
32. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Husband visiting
office of wife, humiliating her by using objectionable language in
presence of her colleagues and calling her prostitute ­ Husband can be
said to have treated wife with cruelty ­ Wife entitled to grant of divorce.
(Smt.Kala Kumari Vs Ram Bhawan Anand) AIR 2004 All. 54
34. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Isolated incidents of
misbehaviour by husband ­ Held, these are not sufficient to establish
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51. 51
cruelty ­ mental or physical. (Mayawanti Vs Bina Ram) 2004(3) Civil
Court Cases 59 (P&H)
35. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Levelling of false and
scandalous allegations by wife against husband regarding demand of
dowry and his adulterous life ­ Held, such false allegations constitute
mental cruelty. (Rakesh Sharma Vs Surbhi Sharma) AIR 2002
Rajasthan 138
36. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Mental ­ Enquiry as to
­ Must begin as to the nature of cruel treatment and impact on 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 ­ However, there may be a case 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 case, cruelty will be established if the conduct itself
is proved or admitted. (A.Jayachandra Vs Aneel Kaur) 2005(1) Apex
Court Judgments 318 (S.C.) : 2005(1) Civil Court Cases 402 (S.C.)
37. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Mental ­ Has to be
considered in the light of norms of marital ties of the particular society
to which the parties belong, their social values, status, environment in
which they live. (A.Jayachandra Vs Aneel Kaur) 2005(1) Apex Court
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Judgments 318 (S.C.) : 2005(1) Civil Court Cases 402 (S.C.)
38. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Mental cruelty ­
Mental cruelty is far more damaging than physical cruelty ­ Mental
cruelty continues to hurt the person all along and any amount of
heeling touch or heeling words would not wipe out the scars which
continue to prick and cause continuous hurt. (Manmohan Singh Vs
Aneeta Preet) 2003(2) Civil Court Cases 410 (P&H)
39. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Not established ­
Allegations and counter­allegations of misbehaviour, physical and
mental torture made by both parties ­ Parties unable to live together ­
Marriage becoming death both emotionally and practically with no
chances of revival ­ In such circumstances decree of divorce granted.
(Poonam Gupta Vs Ghanshyam Gupta) AIR 2003 Allahabad 51
40. Hindu Marriage Act, 1955, S.13 ­ Cruelty ­ Wife alleged to have
illicit relations with a person ­ Person with whom wife alleged to have
illicit relations not examined or cross­examined though his affidavit was
on record ­ Cannot be concluded that wife had illicit relations with her
colleague etc. ­ Finding of cruelty by wife on that count liable to be set
aside. (Anita Vs Krishnakumar) AIR 2003 Bombay 273
41. Hindu Marriage Act, 1955, S.13 ­ Cruelty and harassment for
dowry ­ Wife seeking divorce ­ Husband alleged to be drug addict,
alcoholic and demanding dowry ­ Deed of divorce executed by parties
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