“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 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.

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.


 

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R

Reserved

Court No. – 3

Case :- FIRST APPEAL DEFECTIVE No. – 6 of 2011

Appellant :- Smt. Gurpreet Kaur

Respondent :- Shri Rajeev Singh

Counsel for Appellant :- Amrit Preet Singh

AND

Case :- FIRST APPEAL DEFECTIVE No. – 4 of 2011

Appellant :- Smt. Gurpreet Kaur

Respondent :- Shri Rajeev Singh

Counsel for Appellant :- Amrit Preet Singh

AND

Case :- FIRST APPEAL DEFECTIVE No. – 5 of 2011

Appellant :- Smt. Gurpreet Kau

Respondent :- Shri Rajeev Singh

Counsel for Appellant :- Amrit Preet Singh

Hon’ble Shabihul Hasnain,J.

Hon’ble Sheo Kumar Singh-I,J.

(Delivered by Hon’ble Sheo Kumar Singh-I, J.

  1. This is yet another unfortunate matrimonial dispute which has shattered the old matrimonial bond between the parties.
  2. The respondent namely Rajeev Singh filed a petition in January, 2005 as Original Suit No.29 of 2005 for judicial separation under Section 10 of Hindu Marriage Act, 19551 and thereafter through amendment the above mentioned case was amended as suit for dissolution of his marriage under Section 13 of the Act instituted in court of the Principal Judge, Family Court, Lucknow, which was registered as Original Suit No.29 of 2005; Rajeev Singh v. Smt. Gurpreet Kaur.
  3. In the petition filed before the Family court, it was averred by the respondent-husband that the marriage between the parties was solemnized in accordance with Hindu Sikh rites and customs on 04.11.1998. After marriage the husband and wife stayed together for sometime and during continuance of marriage, a female child named Km. Prabhleen Kaur came to this world on 25.01.2001. It is alleged by the husband that the appellant-wife was non-cooperative, arrogant and her behaviour towards the family members of the husband was unacceptable. Despite misunderstanding, a female child was born in the wedlock and thereafter, the wife took the child and left the house and went to her parental house and chose not to come back to the husband or his family and to perform her duties as wife in the house of her husband. It was pleaded that there had been a marital discord and total non-compatibility, and she had deserted him severing all ties.
  4. Wife, Smt. Gurpreet Kaur/appellant, also instituted a suit for restitution of conjugal right under Section 9 of the Act against the respondent, which was registered as Original Suit No.694 of 2005; Smt. Gurpreet Kaur v. Rajeev Singh and another. A suit under Section 27 of the Act was filed before the Principal Judge, Family Court by the appellant, which was registered as Misc. Case No.31C of 2008 for return of ”Stridhan’ and Original Suit No.42 of 2009 under Section 25 of the Act for grant of permanent alimony. It is alleged that the matter was referred to reconciliation at the ”Paramarsh Kendra’ (Conciliation Board) in the Family Court Lucknow but the husband withdrawn himself and violated the terms and condition of living together as the good efforts were made in this regard by the reconciliation officers. During the course of hearing all the above suits were consolidated by the learned Principal Judge, Family Court and Original Suit No.29 of 2005 was made leading case. Issues were framed and evidence was taken. After recording the statement of witness and hearing the parties at length, learned Principal Judge, Family Court decided all the above mentioned case vide order dated 27.11.2010 and disposed of as follows:
  5. Original Suit No.29 of 2005 filed under Section 13 of the Act was decreed and the marriage between the parties was dissolved.
  6. Original Suit No.694 of 2005 filed under Section 9 of the Act by the wife for restitution of conjugal rights was dismissed.

iii. Misc. Case No.31C of 2008 filed by the wife under Section 27 of the Act was partly allowed and the respondent-husband was directed to return the items of the wife, which was kept by him as ”Stridhan’.

 

  1. Original Suit No.42 of 2009 filed under Section 25 of the Act was partly allowed and the husband was directed to pay an amount of Rs.4,00,000/- to the appellant.
  2. Aggrieved by the order, the appellant has filed the present appeals on the ground that:

(a) The husband has not specifically stated and pleaded that he did not want to live with his wife. The appellant-wife has expressed her willingness to live with the respondent-husband and she has filed the suit for restitution of conjugal rights.

(b) The appellant had led the evidence to the fact that she was expelled from her Sasural as she is still ready to live with his husband that the respondent had stated in his oral statement that he wanted to live with the appellant as such he went several times to her parental house to bring her back, which proves that there was no cruelty by the appellant against the respondent.

(c) By filing the petition under Section 27 of the Act, the appellant has expressed her willingness to live with the respondent and always made her ready to live together as husband and wife that by the assessment of oral evidence led by the respondent the form of cruelty or desertion on part of the appellant-wife has not been proved.

 

(d) That the matter was taken up by the Family Court and ”Ramgariya Sabha’, Their internal social wing, which has been coordinating in the matter of family dispute and tried their best to decide the matter but the respondent-husband failed to comply the advice given by the ”Ramgariya Sabha’

 

(e) that the respondent-husband has neglected the appellant-wife without any proper reason and rhyme and the above fact has not been considered by the learned family court that in their pleadings, both the parties have stated that while living separately, they have tried to patch up the differences and so accordingly the efforts were made by them to live together as husband and wife but in spite of above facts, the family court reached the conclusion of cruelty and desertion on the part of the wife.

 

  1. A perusal of the suit filed under Section 13 of the Act reveals that the husband has taken following ground for obtaining the decree of divorce:

 

(i) That after marriage, the conduct and behaviour of his wife was not good with the father of the husband and she used to harass his parents.

 

(ii) Wife used to pressurize the husband to fulfill her wish and demands.

 

(iii) The wife always pressurize to live with him at the place of his service but the husband was working in the field of marketing in private sector and usually he remains out of station for official purposes and he was not able to keep his wife with him.

(iv) She threatened him to face dire consequences and also threatened to commit suicide.

(v) She used to visit her parental house without consent of his parents.

(vi) That his mother was suffering from blood pressure and sugar and she was not cooperating with the feeding and providing medicine to his mother.

(vii) That the mother of husband was suffering from backache and there is fracture in her hands, and she was pressurizing regularly to the husband to live with him at his work place.

(viii) She was intended to do some service while the husband was not in view of permitting her to do some service and later on she joined the service without taking his consent.

(ix) When he was at his work place, the wife after consulting her parents left his house with her bag and necessary items and went to her parental house along with daughter.

(x)          That the wife has separated and deserted him without any cogent and reasonable ground.

  1. In reply thereof, the appellant-wife (defendant in original suit filed for divorce) has submitted written submission with the fact that after birth of female child, she was regularly harassed for one or another reason and for non fulfillment of demand of dowry and family members of the wife tried their best to reach on any compromise so that both of them may live a peaceful social life but the attempt of compromise was failed due to rigid attitude of the husband.
  2. Learned Judge, Family Court after going through the pleadings of the parties has framed three issues to the effect as to whether the wife has treated the husband with physical and mental cruelty, and as to whether the wife has deserted the husband without any reason w.e.f. 17.01.2002. To prove the rival versions, the husband Rajeev Singh has examined himself as PW-1 and also examined Arvindar Kaur as PW-2 and G.B. Singh as PW-3. After filing the affidavit, the appellant Gurpreet Singh was examined as DW-1. Swarnjeet Singh as DW-2, Sardar Amarjeet Singh as DW-3, Sardar Harpal Singh as DW-4 and Sadar Manjeet Singh as DW-5 were also examined by the appellant-defendant in the case.

 

  1. Learned counsel for the appellant has submitted that the family members of the appellant-wife attempted so many times to come back to the matrimonial home but they did not convince the husband as he was acting in the ill advice of his family members and was not intending to keep the appellant-wife at his work place. It was put forth by the appellant that he had without any reasonable cause or excuse refused to perform his marital obligations. The plea of mental hurt and trauma was controverted on the assertion that she had never treated him with cruelty. It has further been contended that the filing of application under Section 9 of the Act for restitution of conjugal rights to which an objection was filed by the husband shows that the appellant-wife is ready to perform her matrimonial relation but instead the husband had filed the petition firstly for judicial separation. Later on by means of amendment it was converted for divorce under Section 13 of the Act.

 

  1. Assailing the legal sustainability of the judgement of Principal Judge, Family Court, learned counsel appearing for the appellant, has submitted that when the petition was initially filed for judicial separation on the ground of desertion, further amendment under Section 13(1) of the Act does not satisfy the requirement of divorce because the plea as has been taken was judicial separation are not found sufficient to prove the case of divorce.

 

  1. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court. The plea that was raised for grant of divorce was under Section 13(1)(ib) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68/1976. Prior to the amendment it was only a ground for judicial separation. Dealing with the concept of desertion, the Court in Savitri Pandey v. Prem Chandra Pandey; (2002) 2 SCC 73 has ruled thus:-

 

“”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 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 a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion.”

 

  1. 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 it transpires that there are assertions of ill-treatment, mental agony and torture suffered by the husband.

 

  1. Before we critically examine the judgment 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.

 

  1. The 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.”

 

  1. In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, the Apex 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.

 

  1. In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, the 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.

 

  1. 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.

 

  1. Again, the 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.”

 

  1. The 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.”

 

  1. 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.”

 

  1. The 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.”

 

  1. 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.

 

  1. 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.”

 

  1. The 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.”

 

  1. 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.

 

  1. In a recent decision of the 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.

 

  1. The 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:

 

  1. 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)}.

 

  1. 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.

 

  1. 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.”

 

  1. Lord Merriman, in Waters v. Waters (1956) 1 All. E.R. 432 observed that intention to injure was not necessary ingredient of cruelty.

 

  1. 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.’

 

  1. 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.”

 

  1. 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.

 

  1. 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.’

 

  1. 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.

 

  1. 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.

 

  1. 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.’

 

  1. 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”.

 

  1. In Le Brocq v. Le Brocq [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.”

 

  1. 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.

 

  1. 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.”

 

  1. 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).

 

  1. 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:

 

  1. 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.

 

  1. 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.”

 

  1. In Rosenbaum v. Rosenbaum [(1976) 38 Ill.App.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.”

 

  1. 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.”

 

  1. 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:

 

  1. 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.”

 

  1. 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.”

 

  1. 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.”

 

  1. 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:

 

  1. 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.’

 

  1. 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”.

 

  1. 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.

 

  1. 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.”

 

  1. 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.

 

  1. 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.

 

  1. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

 

Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.

 

  1. 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.

 

  1. 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.

 

  1. 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.”

 

  1. 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.

 

  1. 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.

 

  1. 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.”

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. According to the Philosophy of the Act, the 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.

 

The expression ‘cruelty’ 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. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties.

 

  1. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the ”Consortium Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

 

  1. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O’Regan, J., in Dawood and Another v. Minister of Home Affairs and Others 2000 (3) SA 936 (CC) noted as follows:

 

“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.

 

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends….”

 

  1. South African Constitutional Court in various judgments recognized the above mentioned principle. In Satchwell v. President of the Republic of South Africa and Another 2002 (6) SA 1 (CC), Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional Court of South Africa recognized the right “free to marry and to raise family”. Section 15(3)(a)(i) of the Constitution of South Africa, in substance makes provision for the recognition of “marriages concluded under the tradition, or a system of religious, personal or family law.” Section 9(3) of the Constitution of South Africa reads as follows:

 

“The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

 

  1. Article 23 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that:

 

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

 

  1. The right of men and women of marriageable age to marry and to found a family shall be recognized.

 

  1. No marriage shall be entered into without the free and full consent of the intending spouses.

 

  1. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

 

  1. Article 16 of the Universal Declaration of Human Rights, 1948 provides that:

 

“1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at it dissolution.

 

  1. Marriage shall be entered into only with the free and full consent of the intending spouses.

 

  1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

 

  1. Parties in the present case are Hindus by religion and are governed by the Hindu Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but the “conditions for a Hindu marriage” are dealt with in Section 5 of the Hindu Marriage Act and which reads as under:

 

“5. Conditions for a Hindu marriage – A marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely:-

 

(i) neither party has a spouse living at the time of the marriage

 

(ii) at the time of the marriage, neither party-

 

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

 

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

 

(c) has been subject to recurrent attacks of insanity;

 

(iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage;

 

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

 

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”

 

  1. Section 7 of the Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage” and reads as follows:

 

“7. Ceremonies for a Hindu marriage. –

 

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

 

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”

 

  1. Entering into a marriage, therefore, either through the Hindu Marriage Act or the Special Marriage Act or any other Personal Law, applicable to the parties, is entering into a relationship of “public significance”, since marriage being a social institution, many rights and liabilities flow out of that legal relationship. The concept of marriage as a “civil right” has been recognised by various courts all over the world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold 198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).

 

  1. We have referred to, in extenso, about the concept of “marriage and marital relationship” to indicate that the law has distinguished between married and unmarried people, which cannot be said to be unfair when we look at the rights and obligations which flow out of the legally wedded marriage. A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or, marriage-like relationship or defacto relationship.

 

  1. Married couples who choose to marry are fully cognizant of the legal obligation which arises by the operation of law on solemnization of the marriage and the rights and duties they owe to their children and the family as a whole, unlike the case of persons entering into live-in relationship. This Court in Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198 held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.

 

RELATIONSHIP IN THE NATURE OF MARRIAGE:

 

  1. Modern Indian society through the DV Act recognizes in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already indicated, deals with a relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by:

 

  1. a) Consanguinity

 

  1. b) Marriage

 

  1. c) Through a relationship in the nature of marriage

 

  1. d) Adoption

 

  1. e) Family members living together as joint family.

 

  1. The definition clause mentions only five categories of relationships which exhausts itself since the expression “means”, has been used. When a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression “include” so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression “relationship in the nature of marriage”.

 

  1. We have already dealt with what is “marriage”, “marital relationship” and “marital obligations”. Let us now examine the meaning and scope of the expression “relationship in the nature of marriage” which falls within the definition of Section 2(f) of the DV Act. Our concern in this case is of the third enumerated category that is “relationship in the nature of marriage” which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.

 

  1. Distinction between the relationship in the nature of marriage and marital relationship has to be noted first. Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in-relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression “in the nature of”.

 

  1. Reference to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage, would be apposite. Following are some of the categories of cases which are only illustrative:

 

  1. a) Domestic relationship between an unmarried adult woman and an unmarried adult male: Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.

 

  1. b) Domestic relationship between an unmarried woman and a married adult male: Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act.

 

  1. c) Domestic relationship between a married adult woman and an unmarried adult male: Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.

 

  1. d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male: An unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f) of the DV Act and such a relationship may be a relationship in the “nature of marriage”, so far as the aggrieved person is concerned.

 

  1. e) Domestic relationship between same sex partners (Gay and Lesbians): DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.

 

  1. Section 2(f) of the DV Act though uses the expression “two persons”, the expression “aggrieved person” under Section 2(a) takes in only “woman”, hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act.

 

  1. We should, therefore, while determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence”, have a common sense/balanced approach, after weighing up the various factors which exist in a particular relationship and then reach a conclusion as to whether a particular relationship is a relationship in the “nature of marriage”. Many a times, it is the common intention of the parties to that relationship as to what their relationship is to be, and to involve and as to their respective roles and responsibilities, that primarily governs that relationship. Intention may be expressed or implied and what is relevant is their intention as to matters that are characteristic of a marriage. The expression “relationship in the nature of marriage”, of course, cannot be construed in the abstract, we must take it in the context in which it appears and apply the same bearing in mind the purpose and object of the Act as well as the meaning of the expression “in the nature of marriage”. Plight of a vulnerable section of women in that relationship needs attention. Many a times, the women are taken advantage of and essential contribution of women in a joint household through labour and emotional support have been lost sight of especially by the women who fall in the categories mentioned in (a) and (d) supra. Women, who fall under categories (b) and (c), stand on a different footing, which we will deal with later. In the present case, the appellant falls under category (b), referred to in paragraph 37(b) of the Judgment.

 

  1. We have, therefore, come across various permutations and combinations, in such relationships, and to test whether a particular relationship would fall within the expression “relationship in the nature of marriage”, certain guiding principles have to be evolved since the expression has not been defined in the Act.

 

  1. Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression “relationship in the nature of marriage” is also described as defacto relationship, marriage – like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc.

 

  1. Courts and legislatures of various countries now began to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the need of those benefits is felt by both unmarried and married cohabitants. Courts in various countries have extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late, through legislations started giving benefits to heterosexual cohabitants.

 

  1. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have been recognized. Family Law Act, 1996, through the Chapter IV, titled ”Family Homes and Domestic Violence’, cohabitants can seek reliefs if there is domestic violence. Canada has also enacted the Domestic Violence Intervention Act, 2001. In USA, the violence against woman is a crime with far-reaching consequences under the Violence Against Women Act, 1994 (now Violence Against Women Reauthorization Act, 2013).

 

  1. The Interpretation Act, 1984 (Australia) has laid down certain indicators to determine the meaning of “de facto relationship”, which are as follows:

 

“A. De facto relationship and de facto partner, references to (1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

 

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential–

 

(a) the length of the relationship between them;

 

(b) whether the 2 persons have resided together;

 

(c) the nature and extent of common residence;

 

(d) whether there is, or has been, a sexual relationship between them;

 

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

 

(f) the ownership, use and acquisition of their property (including property they own individually);

 

(g) the degree of mutual commitment by them to a shared life;

 

(h) whether they care for and support children;

 

(i) the reputation, and public aspects, of the relationship between them.”

 

  1. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression “couple relationship” to mean as follows”:

 

“18. Meaning of couple relationship

 

1) xxx xxx xxx

 

2) In deciding whether a couple relationship exists, a court may have regard to the following –

 

  1. a) the circumstances of the relationship between the persons, including, for example-

 

(i) the degree of trust between the persons; and

 

(ii) the level of each person’s dependence on, and commitment to, the other person;

 

  1. b) the length of time for which the relationship has existed or did exist;

 

  1. c) the frequency of contact between the persons;

 

  1. d) the degree of intimacy between the persons.

 

3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a couple relationship exists-

 

  1. a) Whether the trust, dependence or commitment is or was of the same level;

 

  1. b) Whether one of the persons is or was financially dependent on the other;

 

  1. c) Whether the persons jointly own or owned any property;

 

  1. d) Whether the persons have or had joint bank accounts;

 

  1. e) Whether the relationship involves or involved a relationship of a sexual nature;

 

  1. f) Whether the relationship is or was exclusive.

 

4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).

 

5) A couple relationship may exist between two persons whether the persons are of the same or a different gender.

 

6) A couple relationship does not exist merely because two persons date or dated each other on a number of occasions.”

 

  1. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some guidelines with regard to the meaning and content of the expression “de facto relationship”, which reads as follows:

 

“4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

 

(a) who live together as a couple, and

 

(b) who are not married to one another or related by family.

 

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

 

(a) the duration of the relationship,

 

(b) the nature and extent of common residence,

 

(c) whether or not a sexual relationship exists,

 

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

 

(e) the ownership, use and acquisition of property,

 

(f) the degree of mutual commitment to a shared life,

 

(g) the care and support of children,

 

(h) the performance of household duties,

 

(i) the reputation and public aspects of the relationship.

 

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

 

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

 

  1. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at 917, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be “long term” to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.

 

  1. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:

 

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage….. So many couples are cohabiting with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ”as good as married’ anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”

 

  1. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the following observations:

 

“Finn J was correct to stress the difference between living together and living together ”as a couple in a relationship in the nature of marriage or civil union’. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.”

 

  1. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court considered whether a man and a woman living together ”as husband and wife on a bona fide domestic basis’ and Fitzgerald, J. said:

 

“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

 

  1. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), listed few characteristics which are relevant to determine relationship in the nature of marriage as follows:

 

“(1) Whether and how frequently the parties live in the same house. (2) Whether the parties have a sexual relationship. (3) Whether the parties give each other emotional support and companionship.

 

(4) Whether the parties socialize together or attend activities together as a couple.

 

(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children. (6) Whether the parties share household and other domestic tasks. (7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise. (8) Whether the parties run a common household, even if one or other partner is absent for periods of time.

 

(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.”

 

  1. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.

 

  1. Section 125 Cr.P.C., of course, provides for maintenance of a destitute wife and Section 498A IPC is related to mental cruelty inflicted on women by her husband and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, the Parliament has recognized a “relationship in the nature of marriage” and not a live-in relationship simplicitor.

 

  1. We have already stated, when we examine whether a relationship will fall within the expression “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV Act, we should have a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account. We cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.

 

  1. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.

  1. In light of the above proposition of law, we have gone through the allegations made in the evidence before the learned Judge, family court. During pendency of this appeal, the husband Rajeev Singh has filed an affidavit with the facts that prior to passing judgement of the learned Judge, family court, the deponent-husband suffered from heart problem (Angina Stroke) and was admitted in SGPGI, Lucknow where coronary angiography was done and Stent to LCX Lesion was done on 01.10.2010 in which the deponent incurred expenses of more than two lakh and further submitted that in respect of the case under Section 27 of the Act, the appellant, during the course of argument before the court, showed her willingness to accept the jewellery articles and was admitted before the family court. The husband brought the said jewellery items before the court on the said date. Neither the appellant nor her counsel appeared before the court to receive the jewellery and further stated that husband is ready to pay an amount of Rs.2.5 lakh to his daughter namely Prabhleen Kaur in addition to what he has already given to his daughter.
  2. The statement of witnesses recorded before the learned Judge, family court reveals that the husband has relied upon the following grounds for decree of divorce:

(i)            That the wife is of the view to do service and after some times, she joined the service and presently she is in employment against the wishes of the husband or his family members.

  1. Learned counsel for the appellant has submitted that this can be never a ground for divorce and the facts that the wife is working cannot be treated to be the ground for cruelty. He has further submitted that the husband has deserted the wife and was not ready to keep her with him and thus she compelled to resides with her parents and to maintain her livelihood with her child at the parental home, she was compelled by the circumstances to join the service according to her status and education.
  2. Fight for the rights of women may be difficult to trace in history but it can be stated with certitude that there were lone and vocal voices at many a time raising battles for the rights of women and claiming equal treatment. Initially, in the West, it was a fight to get the right to vote and the debate was absolutely ineffective and, in a way, sterile. In 1792, in England, Mary Wollstonecraft in “A Vindication of the Rights of Women” advanced a spirited plea for claiming equality for, “the Oppressed half the Species”. In 1869, “In Subjection of Women” John Stuart Mill stated, “the subordination of one sex to the other ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other”. On March 18, 1869 Susan B. Anthony proclaimed “Join the union girls, and together say, “Equal pay, for Equal work”. The same personality again spoke in July 1871 : “Women must not depend upon the protection of man but must be taught to protect themselves”.
  3. Lord Denning in his book Due Process of Law has observed that a woman feels as keenly thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom – develop her personality to the full – as a man. When she marries, she does not become the husband’s servant but his equal partner. If his work is more important in life of the community, her’s is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.
  4. The human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community… The World Conference on Human Rights urges governments, institutions, intergovernmental and non-governmental organizations to intensify their efforts for the protection of human rights of women and the girl child.
  5. The Preamble of our Constitution is “a key to open the mind of the makers of the Constitution which may show the general purpose for which they make the Constitution. It declares the rights and freedoms which the people of India intended to secure to all citizens. The Preamble begins with the words “WE, THE PEOPLE OF INDIA……” which includes men and women of all castes, religions, etc. It wishes to render “EQUALITY of status and or opportunity” to every man and woman. The Preamble again assures “dignity of individuals” which includes the dignity of women. On the basis of the Preamble, several important enactments have been brought into operation, pertaining to every walk of life – family, succession, guardianship and employment – which aim at providing the protecting the status, rights and dignity of women. Our compassionate Constitution, the Fountain Head of all laws, is gender sensitive.
  6. The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. It is apt to refer to certain constitutional provisions which are significant in this regard:

(i) Equality before law (Article 14)

(ii) The State not to discriminate against any citizen on grounds only of religion, race caste, sex, place of birth or any of them (Article 15(i))

(iii) The State to make any special provision in favour of women and children (Article 15(3))

(iv) The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))

(v) The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)

(vi) The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)

(vii) To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A)(e))

(viii) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))

(ix) Not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D(4))

(x) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T(3))

(xi) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T(4)).

  1. Reservation under Articles 243 D (3), D (4), T (3) and T (4) are meant to empower the woman politically.
  2. Some Articles play a major role in the field of women empowerment. Article 15(3) empowers the State to make special provisions for them. The well-being of a woman is an object of public interest and it is to be achieved to preserve the strength and vigour of the race. This provision has enabled the State to make special statutory provisions exclusively for the welfare of women.
  3. Article 39(a), requires the State to direct its policy towards securing that the citizens, men and women equally have the right to an adequate means of livelihood. Under Article 39(d), the State shall direct its policy towards securing equal pay for equal work for both men and women. This Article draws its support from Article 14 and 16 and its main objective is the building of a welfare society and an equalitarian social order in the Indian Union. To give effect to this Article, the Parliament has enacted the Equal Remuneration Act, 1976 which provides for payment of equal remuneration to men and women workers and prevents discrimination on the ground of sex. Further, Article 39(e) is aimed at protecting the health and strength of workers, both men and women.
  4. A very important and useful provision for women’s welfare and well-being is incorporated under Article 42 of the Constitution. It imposes an obligation upon the State to make provisions for securing just and humane conditions of work and for maternity relief. Some of the legislations which promoted the objectives of this Article are the Workmen’s Compensation Act, 1923, the Employees State Insurance Act, 1948, the Minimum Wages Act, 1948, the Maternity Benefit Act, 1961, the Payment of Bonus Act, 1965, and the like.
  5. Conferment of equal status on women apart from being a constitutional right has been recognized as a human right. In Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty; 1996 AIR 922, 1996 SCC (1) 490, the Court observed that women have the right to be respected and treated as equal citizens. Accentuating on the concept, it proceeded to state thus: –

“9. …Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are mother, daughter, sister and wife and not playthings for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.”

  1. Economic empowerment is a necessary fulcrum of empowerment. The Constitutional Courts in many an authority have laid emphasis on said conception and interpreed the provisions to elevate the status of women and to empower them.

 

  1. In Thota Manikayamma V. Thota Manikyamma (1991) 4 SCC 312 the Court, while interpreting Section 14 of the Hindu Succession Act, 1956 converting the women’s limited ownership of property into full ownership, has observed as follows:-

“21……. Article 15(3) relieves from the rigour of Article 15(1) and charges the State to make special provision to accord to women socio-economic quality …….. It would mean that the court would endeavour to give full effect to legislative and constitutional vision of socio-economic equality to female citizen by granting full ownership or property to a Hindu female. As a fact Article 15(3) as a forerunner to common code does animate to make law to accord socio-economic equality to every female citizen of India irrespective of religion, race, caste or religion.”

  1. When the matter relating to mother as natural guardian was questioned, the Court held that relegation of mother to inferior position to act as a natural guardian is violation of Articles 14 and 15 and hence, the father cannot claim that he is the only natural guardian. The guardianship right of women has undergone a sea change by this interpretation given by the Court in Gita Hariharan v. RBI, (1999) 2 SCC 228.
  2. In Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221, The Court has also upheld an Orissa Government Order reserving 30% quota for women in the allotment of 24 hours medical stores as part of self-employment scheme. Thus, the language of Article 15 (3) is in absolute terms and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favour of women or children.
  3. In this context it is useful to refer to the decision rendered in the case of Sellammal v. Nallammal, (1977) 3 SCC 145, wherein the Court held that the Hindu Marriage Act will override the U.P. Jamindari Abolition and Land Reforms Act and also held that exclusive right to male succession may be suspended till female dependent adopt another mode of livelihood.
  4. Many a time question arises with regard to rights of women qua property. Various High Courts have interpreted Section 27 of the Hindu Marriage Act in a different manner. As far as the High Court of Madhya Pradesh is concerned the Court in the case of Ashok Kumar Chopra v. Visandi, AIR 1996 MP 226, held that ”Stridhan’ is the property of the wife in her individual capacity and the husband is merely trustee of that property and the husband is liable to return that property and value thereof under the substantive law and in equity. The power has been conferred by the M.P. High Court on the matrimonial courts in respect of certain properties.
  5. In this regard it is necessary to refer that Hindu women who were not entitled to right to property have been given equal share along with male heir and they have presently been given equal rights. The concept of equality is the bedrock of gender justice. In the case of Neera Mathur v. LIC (1992) 1 SCC 286, a female candidate was required to furnish information about her menstrual period, last date of menstruation, pregnancy and miscarriage. When the matter came before the Court, their Lordships held that such declarations were improper. The Court directed that the Corporation would do well to delete such column in the declaration.
  6. In light of the above facts, the ground as the wife joined the service, in our view, cannot be made the ground for treating it as cruelty or ground for divorce.
  7. Second ground is that the wife left the house without consent of the husband.
  8. Learned counsel for the appellant-wife has drawn attention towards the statement of husband Rajeev Singh recorded before the lower court as PW-1 on 17.04.2007 in which he had categorically admitted that the appellant, wife has left his house with his consent. Husband had further admitted that the wife wants to live with him at his work place but he was of the view to keep her with his family members for keeping care of his parents for the reasons that his job is of touring job.
  9. The ground as taken by the husband that she was not intended to live with his family members cannot be treated the ground for cruelty. She was always ready and willing to reside with the husband and at one point of time, when there was a mediation with Ramgariya Sabha in Gurudwara members persuaded and made attempt that the husband should keep the wife with him at his work place, the husband was not ready to follow this terms of compromise.
  10. We have carefully examined the grounds as taken by the husband for decree of divorce in light of the above facts and are of the view that the grounds as taken by the husband are not the ground coming within the purview of cruelty and desertion.
  11. No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.
  12. “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 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. It further held:

“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 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. Here a different between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. 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 co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus ort it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.”

  1. Following the decision in Bipinchandra’s case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus 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. For holding desertion proved 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.
  2. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

 

  1. There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong.
  2. Further the wife has filed a suit for restitution of conjugal rights under Section 9 of the Act, which shows that she was always ready to live with the husband. Accordingly, we are of the view that lower court has erred in reaching at the conclusion that the acts of the wife comes within the category of the cruelty. The grounds as taken are neither physical cruelty nor mental cruelty. Thus the decision on issue no.1 and 2 in original suit no.29 of 2005 under Section 13 of the Act that the wife has treated the husband with physical and mental cruelty is not found proved and it is perverse and against the evidence on record. Further the finding that the wife has deserted without any reason is also not based on evidence on record.
  3. In light of the above facts and evidence on record, we are of the view that the finding on issue no.1, 2 and 3 of the original suit is against the settled proposition of law and evidence on record and the decree of divorce is not maintainable. The suit for decree of divorce deserves to be dismissed. In light of the above facts, we are also of the view that cruelty has not been proved against the husband and the wife has not deserted the husband. Willingly she had filed a suit for restitution of conjugal rights numbered as Original Suit No.694 of 2005 under Section 9 of the Act. It deserves to be allowed for restitution of conjugal rights. Original Suit No.42 of 2009 was filed by the wife under Section 27 of the Act for grant of maintenance for herself and her child, it was concluded that the husband should provide an amount of four lakh for maintenance, education and expenditure of marriage of the daughter Prabhleen Kaur.
  4. We have considered rival contentions and perused the judgment impugned and other materials available on record. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in sub-section (1) of Section 25. In a case reported in (1970) 3 SCC 129, Kulbhushan Kumar vs. Raj Kumari and Anr., it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors.
  5. At the outset, we are obliged to reiterate the principle of law how a proceeding under Section 125 of the Code has to be dealt with by the court, and what is the duty of a Family Court after establishment of such courts by the Family Courts Act, 1984. In Smt. Dukhtar Jahan v. Mohammed Farooq, (1987) 1 SCC 624, the Court opined that proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.
  6. A three-Judge Bench in Vimla (K.) v. Veeraswamy (K.), (1991) 2 SCC 375, while discussing about the basic purpose under Section 125 of the Code, opined that Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
  7. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat and another, (1996) 4 SCC 479, while adverting to the dominant purpose behind Section 125 of the Code, ruled that:

“While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.”

  1. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, reiterating the legal position the Court held: –

 

“Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 63[6].”

  1. Recently in Nagendrappa Natikar v. Neelamma 2013 (3) Scale 561, it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children.
  2. The Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. A three-Judge Bench in K.A. Abdul Jaleel v. T.A. Shahida, (2003) 4 SCC 166, while highlighting on the purpose of bringing in the Family Courts Act by the legislature, opined thus: –

“The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.”

  1. The purpose of highlighting this aspect is that in the case at hand the proceeding before the Family Court was conducted without being alive to the objects and reasons of the Act and the spirit of the provisions under Section 125 of the Code. It is unfortunate that the case continued for five years before the Family Court. It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.
  2. On this point by filing counter affidavit, the husband has stated that he had deposited an amount of Rs.81,000/-, which was granted as maintenance allowance in favour of the daughter and has also invested Rs.15,000/- in term deposit in State Bank of India in favour of the daughter, which is going to mature on 15.10.2019. The maturity amount of the same is Rs.31,535/-. In para-9 of the affidavit, he has submitted that since financial condition of the deponent is not as sound as of the appellant and in comparison to the appellant the deponent is getting salary of Rs.18,447/-, however, he is still ready and willing to pay Rs.2.5 lakh, out of his total savings which is about Rs.3 lakh, to his daughter namely Prabhleen Kaur in addition to what he has already given to his daughter. The child is minor and studying in preliminary stage. A reasonable amount is required for her higher studies and expenditure of marriage.
  3. We are of the view that total amount of Rs.10 lakh, in addition to what he has already paid, be deposited in the name of his daughter namely Prabhleen Kaur and be kept in the form of FDR (Fixed Deposit Receipt) in a nationalized bank under the guardianship of the mother and regularly the interest be paid in her savings account opened in the name of minor to be operative by the mother guardian and be expended only for the education and for the benefit of the minor whenever required. At the time of marriage, the total amount may be withdrawn by the mother as a guardian to meet out the expenditure of marriage. Rest of the expenditure for marriage shall be borne by the mother. Accordingly, we allow the appeals and disposed of the applications/suits as follows:

(i)The appeals are allowed. The judgement and order dated 27.11.2010 passed in Original Suit No.29 of 2005 Rajeev Singh v. Smt Gurpreet Singh filed under Section 13 of the Act is set aside with cost.

(ii) Original Suit No.694 of 2005, Smt. Gurpreet Kaur v. Rajeev Singh for restitution of conjugal rights under Section 9 of the Act is allowed.

(iii)          We are not in view to disturb the findings passed in Misc Case No.31C of 2008 but direct that the order be complied immediately say within 30 days.

 

(iv)         The order passed in Original Suit No.42 of 2009; Smt. Gurpreet Singh v. Rajeev Singh is modified and the amount of Rs.4 lakh as directed by the learned Judge, family court is enhanced to the tune of Rs.10 lakh and the respondent-husband is directed to pay this amount to the daughter and be kept in a nationalized bank as narrated above.

  1. The appellant’s applications and appeals are disposed of accordingly.

Order Date :-18.12.2017 Anupam S/-

(Sheo Kumar Singh-I, J.) (Shabihul Hasnain, J.)

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“Does the concept of matrimonial cruelty vary in accordance with the religious persuasions of individuals? Is a spouse bound to suffer greater amount of matrimonial cruelty because the spouses belong to a religion which considered marriage as indissoluble? Can the secular constitutional republic recognise and accept the existence of different varieties of matrimonial cruelty – Hindu cruelty, Christian cruelty, Muslim cruelty and secular cruelty? Should not matrimonial cruelty entitling a spouse for divorce yield to a uniform conceptualisation notwithstanding the different semantics employed in different pieces of matrimonial legislations applicable to different religions? Should not the courts take inspiration from Art.44 of the Constitution and attempt to understand the concept of matrimonial cruelty in a uniform manner to ensure that the right to life under Art.21 is made effective and meaningful under the matrimonial roof and to liberate spouses from a marital life.”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 99 of 2009()
1. SAMDEEP MOHAN VARGHESE, AGED 35,
… Petitioner
2. ANJANA JOSE, D/O.T.T.JOSE,
Vs
1. ANJANA
… Respondent
For Petitioner :SRI.GEO PAUL
For Respondent :SRI.V.V.ASOKAN
The Hon’ble MR. Justice R.BASANT
The Hon’ble MR. Justice M.L.JOSEPH FRANCIS
Dated :15/09/2010
O R D E R
R.BASANT &
M.L.JOSEPH FRANCIS, JJ
……………………………………. MAT.APPEAL. Nos.99 &
152 OF 2009
…………………………………….. DATED THIS THE 15th DAY OF SEPTEMBER, 2010
JUDGMENT
BASANT, J
Does the concept of matrimonial cruelty vary in accordance with the religious persuasions of individuals? Is a spouse bound to suffer greater amount of matrimonial cruelty because the spouses belong to a religion which considered marriage as indissoluble? Can the secular constitutional republic recognise and accept the existence of different varieties of matrimonial cruelty – Hindu cruelty, Christian cruelty, Muslim cruelty and secular cruelty? Should not matrimonial cruelty entitling a spouse for divorce yield to a uniform conceptualisation notwithstanding the different semantics employed in different pieces of matrimonial legislations applicable to different religions? Should not the courts take inspiration from Art.44 of the Constitution and attempt to understand the concept of matrimonial cruelty in a uniform manner to ensure that the right to life under Art.21 is made effective and meaningful under the matrimonial roof and to liberate spouses from a marital life in 
 MA 99 & 152 OF 2009 2
perpetual fear of contumacious cruelty? These questions arise before us in these appeals.
2. These appeals are directed against a common judgment under which three original petitions were disposed of by the Family Court, Ernakulam.
3. The parties are spouses. Their marriage took place in accordance with the Christian religious rites on 20.1.2001. The marriage is admitted. After marriage, the spouses set up residence at Mumbai. They resided together till 14.5.2004. On that day, the respondent/wife returned from the matrimonial home and took up residence along with her sister at Bangalore. She issued Ext.A1 notice demanding divorce and return of properties on 14.12.2004. The same was served on the appellant. There was no response to Ext.A1. Thereafter, the appellant filed a petition for restitution of conjugal rights before the Family Court, Bandra on 30.12.2004. Later, the same was transferred to Family Court, Ernakulam as per order of the Supreme Court and the same was renumbered as O.P.399 of 2006. The wife filed O.P.69 of 2005 before Family Court, Ernakulam claiming divorce on the ground of cruelty and non 
 MA 99 & 152 OF 2009 3
consummation of marriage. Wife had further filed O.P.68 of 2005 claiming return of gold ornaments, money etc. The husband/appellant herein in O.P.68 of 2005 had staked a counter claim for return of ornaments, money etc allegedly due to him. All the three original petitions along with the counter claim were taken up for trial together by the court below.
4. The wife examined herself as PW1, her mother as PW2 and her brother in law as PW3. Exts.A1 to A9 were marked on her side. The husband examined himself as RW1 and two friends of his as Rws 2 and 3. Exts.B1 to B10 were marked.
5. The learned Judge of the Family Court, by the impugned common order, came to the conclusion that the wife was entitled for a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The claim of the wife for divorce under Section 10(1)(vii) on the ground of refusal to consummate the marriage was rejected by the Family Court. O.P.69 of 2005 was thus allowed. Husband’s prayer for restitution of conjugal rights in O.P.399 of 2006 was turned down by Family Court. The claim for return of money in O.P.68 of 2005 was allowed in part. The counter claim of the husband was rejected.
6. Both parties appear to have accepted the decree/order in O.P.68 of 2005 and the counter claim. No appeal is seen preferred against the said part of the impugned order by either spouse. The appellant/husband has preferred these appeals to assail the decree for divorce on the ground of cruelty under Section 10(1)(x) and the rejection of his claim for a decree for restitution of conjugal rights under Section 32 of the Divorce Act.
7. We have heard the learned counsel for the appellant and the respondent. The learned counsel for the appellant assails the impugned order on the following grounds. i) The court below has significantly omitted to record a specific finding on the disputed question of cruelty. ii) The court below should, at any rate, have held that the ground of cruelty under Section 10(1)(x) has not been validly established by the evidence adduced by the wife. iii) The court below ought to have granted a decree for restitution of conjugal rights in favour of the appellant/husband.
Ground No.1
8. The learned counsel for the appellant contends that the court below had significantly omitted to pointedly consider the question whether the claim for divorce on the ground of cruelty under Section 10(1)(x) has been established by the evidence tendered by the wife. The learned counsel particularly points out the following observations/findings in paragraphs 23 and 24 to contend that the issue had not received the pointed consideration which it deserves. We extract Paragraphs 23 and
24.
“23. On going through the evidence tendered by PW1 and RW1, it is evident that the parties were not so cordial at the time when they were
residing together at Mumbai. There was no
consensus of mind between the petitioner and the respondent. It has come out in evidence that there were frequent quarrels between them. The petitioner has alleged that it was the respondent who subjected her to cruelty. The respondent has stated that the petitioner was more interested in her career than retaining a family relationship. He has also stated that at times, the petitioner acted hysterically as if she has some mental imbalance. The evidence tendered by PW2,
PW3, RW2 and RW3 will not be of any help to substantiate the contention of cruelty alleged by the petitioner. The answers given by PW1 and RW1 with respect to their private life reveal that there was no healthy interaction between the spouses in their private life. The reason why she was compelled to return to her sister’s house at Bangalore has been explained by PW1. According to RW1, the petitioner left his flat at the time when he was on business trip. Even though the respondent has contended that the petitioner behaved like an abnormal person, no medical records were produced to substantiate the same. On evaluation of the evidence tendered by PW1 and RW1 it is revealed that their marital life was not happy and that there was no healthy
interaction between them. It shows that there was no cordial or affectionate relationship between the petitioner and the respondent.
24. Under Section 10(1)(x), in order to obtain a decree of divorce the petitioner has to
substantiate that the respondent subjected
her to cruelty so as to cause reasonable
apprehension in her mind that it will be
harmful or injurious for her to reside along with him. The answers given by PW1 and
RW1 during cross examination reveal that it will be harmful for the petitioner to continue the marital relationship with the respondent. The marital relationship between the petitioner and the respondent has been
broken and it has reached upto a stage that it is not possible to have a peaceful and happy life between them. In such circumstances,
the conclusion that can be arrived at is that the petitioner is entitled to get a decree of
divorce against the respondent on the ground of cruelty”.
(emphasis supplied)
9. We are unable to agree that the above findings do not constitute a sufficient finding required under Section 10(1)(x) of the Divorce Act. The findings recorded above clearly show that the court below had come to a positive conclusion that the perception of the respondent/wife that it will be harmful for her to live with the appellant/husband and continue marital relationship with the appellant has been accepted by the court below. The court below has further held that a decree for divorce against the appellant herein on the ground of cruelty deserves to be granted. Thus, we are unable to accept the contention laboriously advanced by the counsel for the appellant that there is no sufficient or specific finding rendered by the court below to justify a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The challenge on this ground – on the ground of want of a specific and definite finding on the plea of cruelty, must, in these circumstances, fail.
Ground No.2:
10. The learned counsel for the appellant alternatively contends that, at any rate, the said finding that the wife is entitled to a decree for divorce on the ground of cruelty under Section 10(1)(x) is not justified. There is no material in support of that conclusion, argues the learned counsel. The learned counsel for the respondent/wife on the contrary, contends that even assuming that specific finding on the alleged acts of physical and mental cruelty have not been rendered by the court below, respondent/wife is entitled before this appellate court to contend that sufficient materials are available in evidence to support the impugned decree by which relief of dissolution on the ground of cruelty has been granted. We are satisfied and it is trite that the relief granted can be attempted to be supported on other grounds by a litigant defending the decree in appeal.
11. That takes us to the all important question as to whether sufficient evidence has been adduced to justify the finding in favour of the wife that appellant/husband is guilty of matrimonial cruelty. The claim for divorce under Section 10(1)
(vii) has been rejected and it is unnecessary for us to go into the evidence tendered on that aspect. However, as rightly pointed out by the learned counsel for the wife/respondent herein, some of the evidence tendered on that ground will have relevance to the claim of sexual misconduct amounting to cruelty also. To that extent, the evidence tendered in support of the claim for divorce under Section 10(1)(vii) will have to be reckoned as relevant.
12. We shall make a brief reference to the evidence tendered – oral and documentary. As stated earlier, PW1/wife had tendered evidence about the physical, mental and sexual cruelty allegedly heaped on her by her husband, RW1. We have also the evidence of PW2, her mother and the evidence of PW3, her brother in law to afford broad support for the evidence of PW1. Exts.A1 to A9 have been relied on. Ext.A1 is the notice issued by the wife to the husband dated 14.12.2004 after she withdrew from the society of the husband with effect from 14.5.04. That notice Ext.A1 was received and acknowledged under Ext.A2 but the same was not responded to. The counsel for the wife places great emphasis on the conduct of the husband
not replying to Ext.A1 notice in which all allegations presently raised in this proceedings for divorce have been substantially raised. The counsel argues that it is crucial that the said allegations have not been denied or even responded to. Exts.A3 to A5 relate to proceedings initiated before the Supreme Court for transfer of the petition for restitution of conjugal rights from the Family Court at Bandra to Family Court at Ernakalam. We find no crucial relevance in Exts.A3 to A5. Ext.A6 is the marriage photo album and the parties having accepted the order in O.P.68 of 2005 without challenge, we do not find any relevance for the said exhibit in the surviving disputes between the parties in these appeals. Ext.A7 is copy of an E-mail message sent in the name of the wife to various persons including the friends of PW3, her brother in law. In Ext.A7, disparaging remarks are made about the relationship between PW1 and PW3 and it is the case of PW1 and PW3 that it was the husband/RW1 who resorted to such a misadventure to bring to disrepute his wife PW1 and her brother in law, PW3. This is alleged to be an act of gross mental cruelty. Exts.A8 and A9 relate to the complaint made on the basis of Ext.A7 and result of investigation.
13. RW1 is the husband, who tendered evidence denying the alleged cruelty. RWs 2 and 3 are close friends of RW1 and they are examined to show that all was fair and rosy in the relationship between PW1 and RW1 when they resided together in Mumbai.
14. A word about appreciation of evidence in this case. Certain broad aspects must be considered before the challenge against appreciation of evidence is considered. Matrimonial cruelty between educated spouses belonging to a higher strata of society cannot evidently be expected to be proved by occular corroboration from independent sources. By its very nature it would be difficult to secure such independent corroborative evidence. The fact that PW1’s evidence is not corroborated by independent sources is thus insignificant. The evidence of RW2 and RW3 is again not of any vital significance. Go by the evidence of PW1 or RW1, they had traumatic experiences when they cohabited in Bombay. RWs 2 and 3 appear to be fairly close friends of RW1. Even then their evidence suggests that they did not know or perceive any difficulty in the relationship between spouses. That must explain and convey the irrelevance of their
evidence. The learned counsel for the appellant then argues that PW1 has not been believed by the court below on her assertions regarding alleged non consummation of marriage and alleged greed and avarice of RW1. She should not have been believed on the other assertions also, contends counsel. This argument cannot also be accepted. That the claim for divorce on the ground of non consummation has not been accepted cannot obviously lead to omnibus rejection of her evidence. Her grievance was that there was no normal sexual relationship and she was compelled to indulge in oral sex – which she reckoned as unnatural. Similarly her evidence about improprieties of RW1 regarding financial matters is not proved to be false. The course adopted by RW1 of not returning deposit receipts which were converted to joint names inspite of A2 demand cannot be said to be irrelevant. Falsus in uno, falsus in omnibus is not a maxim accepted in the law relating to appreciation of oral evidence in India.
15. The fact that Ext.A2 notice in which allegations were raised by the wife immediately after separate residence commenced was not responded to or denied is certainly relevant while appreciating the
assertions made on oath. Satisfactory and convincing reasons are not offered to explain the meek silence after receipt of Ext.A2. That circumstance is certainly a relevant input while undertaking the exercise of appreciation of evidence in this case.
16. We shall now look at the nature of the cruelty sought to be established on the basis of which the decree for divorce was claimed and granted. First of all, it is alleged that the husband was guilty of physical cruelty against wife. We must remind ourselves that the physical cruelty complained of is cruelty behind the closed doors of the matrimonial home. We say so because it would be puerile and artificial to expect independent oral evidence to corroborate such matrimonial cruelty. Wife complains of matrimonial cruelty. According to her, she used to be assaulted with his belt by her husband. She did not plead or tender evidence about such physical cruelty with reference to date and time. But, she asserted that she was subjected to such physical cruelty. She had of course not complained to any Doctor though she stated that she had suffered injuries and was attended to by a Doctor. She did not reveal to the Doctor that she had suffered any such injury at the hands of her husband as
they were residing together in matrimony at the relevant time. Absence of evidence of the medical expert or admitted absence of a complaint to the medical expert or the police, according to us, would be too meagre, myopic and puerile reasons to discard the evidence about matrimonial physical cruelty.
17. In this context, it will be relevant to note that the husband himself had stated in his counter statement, whatever be the reasons, that the wife used to make life miserable for him and she used to run out of the house to make unnecessary hue and cry. The evidence of the wife about the physical cruelty has to be read and understood in the light of what the husband himself speaks and asserts about the events and nature of relationship between them. According to the wife, to silence her when she was assaulted, cloth used to be stuck into her mouth. We must also note that the spouses are highly qualified educationally – both Engineering Graduates. They both do come from a highly respectable family background admittedly. The fact that the wife did not promptly complain to her mother and relatives or to the Law Enforcement Authorities is according to us too unsatisfactory a reason to throw over board lock, stock
and barrel her evidence about physical cruelty. She has a specific version that she had complained to the mother of the husband about such improper behaviour of the husband. She asserted so in evidence. The mother of the husband was not examined by the husband as a witness to disprove that assertion. The evidence of Pws 1 and 2 indicate that PW1 had made grievance to her mother about her misfortunes in matrimony.
18. Photographs taken when the spouses were living together at Mumbai (Ext.B10 series) are relied on by the appellant in an attempt to knock the bottom out of the theory that there was any such cruelty. The wife admitted that notwithstanding the unpleasantness in the matrimony, she used to put up a brave face in front of others and did not reveal to all and sundry the misfortunes of her matrimonial life. Ext.B10 series really show that the spouses, on the occasions when the photographs were taken (specific time and period cannot be ascertained), were not indulging in any act of cruelty against each other. But according to us, that would be far from stating that there was no cruelty whatsoever between them during the relevant period. Much is attempted to be made out of the 
 MA 99 & 152 OF 2009 16
statement of the wife that she used to act in front of others and when photographs were taken with an intention not to reveal her matrimonial disappointment and sufferings. We find absolutely nothing unnatural in such statement of a wife.
19. The million dollar question to be decided is whether the version of the wife about physical cruelty can be accepted or not. The statement of the husband that she used to behave in a indifferent manner, cry and run out of the house in desperation is of course a broad circumstance supporting the oral evidence tendered by the wife about the cruelty meted out to her inside the matrimonial home. Of course, the husband has a case that it was disappointment and frustration in official career/inability to secure an employment in a Multi National Company that prompted the wife to indulge in such conduct. It is also relevant to note that there was no other reason for the wife to stay away from the husband except alleged matrimonial cruelty inflicted on her. He was young. He was well employed. He was leading a fairly luxurious life. Still she chose not to continue to reside with him. A court is expected to adopt the standards of a prudent person while appreciating evidence about matrimonial cruel
also. So reckoned, we are of the view that evidence, of physical cruelty emanating from the husband towards the wife, spoken to by PW1 – supported broadly by circumstances, can safely be accepted.
20. There is a contention that husband was greedy and used to demand money. Pws 1 and 2 have tendered evidence on this aspect. Husband denies this allegation. According to him, he had not touched the amounts which the wife brought to the matrimonial home. Reliance is placed on Exts.B2 and B3 series to deter the contention that husband was greedy and had taken the money brought by the wife. We have evidence from Ext.B3 series to show that separate fixed deposit in the name of the wife had been converted to the joint names of the husband and wife. That is the admitted version. Except the statements of PW1 and PW2, there is nothing tangible to establish the alleged greed of the husband or his alleged dissatisfaction about the money brought by the wife to the matrimonial home after marriage. Of course, we see that after some of the deposits in the name of the wife matured, husband had got them renewed in the joint names. Of course, he has a contention raised without
specific details that he had also added some money to the deposits when they were so renewed in the joint names of both of them. Some indication about the attitude of the husband in financial matters is available from his conduct of not returning the FD receipts B2 and B3 series to PW1 directly in response to Ext.A1 series or after appearance in court. The fact that he did stake a counter claim in O.P.68 of 2005 against his wife detracts against his attempt now to paint himself white on that aspect. Even after commencement of litigation, he did not return the deposits belonging to her directly, he chose only to produce the same before Court as an exhibit. At any rate, we feel that though PW1 and PW2 had spoken about such a grievance about the greed of the husband for money and his complaint about inadequacy of wealth brought by the wife to the matrimonial home, there is no sufficient material to anchor a finding on that dimension of matrimonial cruelty. We do not, in these circumstances, propose to found any finding against the husband on the basis of such alleged greed pleaded and attempted to be established by the wife.

 

 MA 99 & 152 OF 2009 19
21. The wife complains of cruelty in the bed room. According to her, the husband was not interested in normal sex. She went to the extent of complaining that marriage had not been consummated. She stated specifically that she was forced to indulge in unnatural sex. She explained the same (her concept of unnatural sex) as insistence of the husband on oral sex to which she was reluctant and unwilling. It is her case that her reluctance invited further acts of cruelty on the part of the husband. In Ext.A1, as also in the petition for divorce, these allegations are raised specifically. As stated earlier, Ext.A1 did not evoke any response at all. In the counter statement filed to the petition for divorce, this aspect was not specifically traversed and denied by the respondent. However at the stage of evidence, we find the husband taking the stand that almost invariably, on every occasion, sexual interaction was attempted with oral sexual activity. At the stage of evidence, he hastened to add that it was so not at his instance but only because the wife insisted on the same. This plea surprisingly is not seen raised in the counter statement filed in the divorce petition. The evidence of the husband even suggests that he did not reckon 
 MA 99 & 152 OF 2009 20
such sexual activity to be unnatural at all. It is in this context that we have to appreciate the evidence tendered by PW1 that unwillingly she was invariably compelled to indulge in oral sexual activity at the instance of the appellant. It would certainly have been embarrassing for the wife to disclose such details until the last straw on the camel’s back prompted her to take the decision to separate. Absence of allegations to this effect earlier (ie. before separation) cannot in any way detract against the acceptability of such allegations raised by the wife after 14.5.2004, the date on which she decided to separate and went away from the matrimonial home to join her sister and brother in law at Bangalore. Here again, standards of a reasonably prudent person have to be adopted by the court. The version of the wife raised in Ext.A1 and the petition for divorce, the absence of specific denial of those assertions, the evidence of the wife as PW1 and the stand taken by husband in the course of trial compellingly persuade us to accept the grievance of the wife that she was compelled to indulge in unnatural sexual activity at the instance of the husband to which she was unwilling and that her unwillingness invited the wrath of the 
 MA 99 & 152 OF 2009 21
husband. Matrimonial cruelty in its sexual dimension is established.
22. The learned counsel for the wife contends that even if we go by the case of the appellant, he was guilty of matrimonial cruelty to his wife in that he did not recognise, accept and respect the personality and preferences of the wife. It is the very case of the husband that the wife had aspirations of an active and energetic career. In fact we see the appellant accusing the wife of entertaining aggressive career aspirations. She was herself an Engineer. Her husband was also an Engineer. Her husband had secured admission to Government Engineering College, by getting into the merit list whereas the wife was compelled to pursue her education elsewhere by securing a seat by payment of money, obviously. The husband was well employed. Wife could not secure such good employment. This admittedly caused frustration in the wife. She also wanted to secure a good job for herself, consistent with her qualification – evidently consistent with the position of her husband. It is the very case of the appellant that the wife was over involved with her alleged fascinations and infatuations for a career as an 
 MA 99 & 152 OF 2009 22
Engineer in a Multi National Company. She tried to secure employment in one of the MNCs. It is the case of the husband that he also attempted to encourage her to secure such an employment. It is his case that she became frustrated and disappointed and started behaving like a possessed woman when she met with disappointment in her attempt to secure good employment. It is his very case that he had taken steps to ensure that she gets a good employment. He had taken steps to help her to secure employment with an MNC, viz Siemens. She had secured employment also there. At that stage, husband took the stand that she should not join Siemens. Wife was very disappointed and she stated that if she were not permitted to do the same, she would go back to Bangalore. Still admittedly the husband did not permit her to take up that employment. Her desire in life did not fructify because of the attitude taken by the husband. She was admittedly refused permission to join Siemens. It is the case of the husband that it is that which prompted her to leave him in the lurch and return to Bangalore. The learned counsel for the wife points out that this admitted conduct of the husband not permitting his wife to achieve her 
 MA 99 & 152 OF 2009 23
life’s desire (even going by his own averments) of securing employment with an MNC is certainly an act of matrimonial cruelty which is actionable. He, fully aware of the aspirations and ambitions of his wife admittedly pretended to help her to realise her life’s ambition but denied her opportunity to take up that employment after she secured that job after laborious preparation and endeavour. We need only mention now that on the showing of the husband himself his conduct of refusing permission to his wife to join employment with Siemens which was secured by her with great difficulty with his blessings initially amounts to a matrimonial impropriety. As to whether that would amount to cruelty or not we shall delve deeper at a later stage.
23. The wife made a further grievance. According to her, Ext.A7 E-mail was sent in the name of the wife to various persons including PW3 by none other than RW1, her husband. The contents of Ext.A7 is relied on. We have been taken through the contents of Ext.A7. The learned counsel for the appellant also unambiguously accepts that if Ext.A7 were sent by a husband in the name of his wife, that would certainly amount to 
 MA 99 & 152 OF 2009 24
matrimonial cruelty justifying the grant of a decree for divorce on the ground of cruelty. As observed earlier, the spouses started separate residence on 14.5.2004. Wife returned to her sister and brother in law at Bangalore. She secured an employment there with their help. She was so residing at Bangalore and it was at this juncture that Ext.A7 communication was received through E-mail by PW3 from the address of PW1. It is unnecessary for us to refer to the details in Ext.A7. It does not require the wisdom of Solomon to conclude that it was not sent by PW1. She had unambiguously denied the same. But the answer to this question as to who must have sent Ext.A7, remains in the realm of probabilities and inferences. The contents of Ext.A7 as stated earlier must clearly show that it was not PW1 who sent it. We accept her evidence on that point without any shred of doubt. It is also crucial to note that in Ext.A7, there is no reference whatsoever to the husband RW1. One cannot lose sight of the fact that the tenor of Ext.A7 is one of the outpouring of the disappointments and grievances of PW1. It’s contents shows that PW3 had attempted to abuse her sexually and she had to resist the same. The other evidence 
 MA 99 & 152 OF 2009 25
available indicates that RW1 had a grievance that PW1 was too friendly with her brother in law PW3 though he had refrained from making any insinuation or allegations of illegitimate intimacy. But a reading of the evidence of RW1 shows that he had grievance about the relationship between PW1 and PW3. PW3 was influencing the decisions of PW1, RW1 had complained. It is in this context that one has to see the contents of Ext.A7. Most significantly in Ext.A7, there is not a whisper about the circumstances under which PW1 left RW1 and came back from Mumbai to Bangalore. A finding beyond reasonable doubt as in a criminal case that RW1 was responsible for Ext.A7 may not be possible but the totality of circumstances convincingly show that the conclusion and grievance of PW1 that it was RW1 who created Ext.A7 is very reasonable and acceptable. The manner in which RW1 faced cross examination about Ext.A7 is also interesting. He blows hot and cold as to when he came to know of the contents of Ext.A7. In one breath he would say that he came to know of it earlier vaguely and in the other, he asserts that he came to know of it only after commencement of the proceedings. We have no doubt that 
 MA 99 & 152 OF 2009 26
employment of better and more scientific means might have made it possible to ascertain the origin of Ext.A7 with greater certainty. The fact remains that all available indications point to the involvement or contumacious responsibility of RW1 in the origin of Ext.A7 E-mail communication, which is per se derogatory and defamatory against PW1. No husband interested in the continuance of the marital tie should/could have made such insinuations. We are satisfied that any prudent person will be absolutely justified in sailing to the safe conclusion that RW1 was responsible for the origin of Ext.A7. The totality of circumstances, including the crucial complete omission to refer to RW1 in Ext.A7 compellingly points to correctness and convincing probability of that conclusion. The fanciful theory that PW1 must herself have been responsible for such a communication in an attempt to create evidence does not deserve acceptance at all.
24. Having discussed the facts as above, the short question is whether these findings of fact can justify a decree for divorce under Section 10(1)(x) of the Divorce Act. The learned counsel for the appellant submits that in order to answer the 
 MA 99 & 152 OF 2009 27
description of cruelty under Section 10(1)(x), a much higher degree of cruelty has to be established. According to him, natural wear and tear of matrimony will have to be excluded.
25. The learned counsel for the appellant raises a contention that cruelty under the matrimonial law cannot be reckoned as identical for all religious denominations. The counsel advances a curious argument that so far as a christian couple are concerned, much higher decree of cruelty has to be established to justify a decree of divorce under Section 10(1)(x). The counsel points out that cruelty by itself as a ground for divorce was not recognised under the Divorce Act till Act 51 of 2001 which came into effect from 3.10.2001. The counsel hence argues that such cruelty as would justify a decree for dissolution of a christian marriage has not been established.
26. We shall straight away refer to Section 10(1)(x) of the Divorce Act which reads as follows:-
“10. Grounds for dissolution of marriage -(1) Any marriage solemnized, whether before or
after the commencement of the Indian
Divorce (Amendment)Act, 2001, may, on a
petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of
the marriage, the respondent-

 

 MA 99 & 152 OF 2009 28
(i)xxx
x)has treated the petitioner with such
cruelty as to cause a reasonable apprehension in the mind of the petitioner
that it would be harmful or injurious for the petitioner to live with the respondent”. (rest of the Section except (x)omitted as not essential for our purpose).
27. The learned counsel for the appellant points out to us the provisions for dissolution of marriage on the ground of cruelty under other pieces of matrimonial law applicable to different communities. The counsel first of all points out the provisions in Section 13(1)(ia) of the Hindu Marriage Act which reads as follows:-
“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)xxxxx
(ia) has, after the solemnisation of the
marriage, treated the petitioner with cruelty”.
28. The counsel then points out that provisions of the Special Marriage Act dealing with divorce on the ground of 
 MA 99 & 152 OF 2009 29
cruelty. Section 27(1)(d) of Special Marriage Act deals with cruelty. We extract the same below:-
” Divorce – (1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be
presented to the district court either by
the husband or the wife on the ground
that the respondent –
(a)xxxxx
(b)xxxxx
(c)xxxxx
(d) has since the solemnization of the
marriage treated the petitioner with
cruelty; “.
(irrelevant portions omitted)
29. The learned counsel then points out Section 2(viii) of the Dissolution of Muslim Marriage Act which we extract below:- “Ground for decree for dissolution of marriage – A woman married under Muslim
law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-
(i)xxxxxxxx
ii)xxxxxxx
iii)xxxxxxx
iv)xxxxxxx
v)xxxxxx
vi)xxxxxxx
vii)xxxxx
viii) that the husband treats her with cruelty, that is to say,-

 

 MA 99 & 152 OF 2009 30
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-
treatment, or
b)associates with women of evil repute or
leads an infamous life, or
c)attempts to force her to lead an immoral
life, or
d)disposes of her property or prevents her
exercising her legal rights over it, or
e)obstructs her in the observance of her
religious profession or practice, or
f) if he has more wives than one, does not
treat her equitably in accordance with the
injunctions of the Quran”.
30. The sum and substance of the argument of the learned counsel boils down to this. The spouses belonging to different communities are entitled to indulge in different standards of cruelty against spouses without the risk of a decree for divorce. Some of them are entitled to indulge in more cruelty than those belonging to other religions. The concept of indissolubility of marriage in the Christian religion is such that matrimonial cruelty which would have entitled a woman belonging to other religions for divorce may not entitle a Christian wife to claim divorce on that ground. She must establish gross variety of 
 MA 99 & 152 OF 2009 31
matrimonial cruelty.
31. We are afraid this contention cannot be accepted. The nature of cruelty which would entitle a spouse in matrimony for divorce must certainly be identical in all religions – at least at the present juncture in Indian society. Law cannot recognise different varieties of cruelty as hindu cruelty, muslim cruelty, christian cruelty or secular cruelty to justify a decree for divorce. As early as in Itwari v. Asghari [AIR 1960 ALL. 684], the Allahabad High Court had observed that such different varieties of matrimonial cruelty cannot be recognized. We have no hesitation to agree that the mere fact that Hindu Marriage Act and the Special Marriage Act refer to cruelty without any rider or explanation or the fact that the Divorce Act and the Dissolution of Muslim Marriage Act give indication of the nature of matrimonial cruelty that ought to be established, cannot justify the conclusion that the nature of matrimonial cruelty which would entitle the spouses for divorce is different under different personal laws. It would be absolutely safe to draw inspiration from Article 44 of the Constitution also to jump to the conclusion that nature of cruelty justifying a decree for divorce 
 MA 99 & 152 OF 2009 32
cannot be different under different personal laws. To our mind, it appears that matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Under Section 10(1)(x), the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent. The expression harmful or injurious cannot be limited to physical harm or injury. Anything that would hinder the ability of the spouse to blossom into his/her fullness and to enjoy life in matrimony must be held to fall within the sweep of Section 10(1)(x) of the Divorce Act. Cruelty which is not defined in Section 13(1)(1a) of the Hindu Marriage Act and Section 27(1) of the Special Marriage Act and cruelty which is explained in Section 2(viii) of the Dissolution of Muslim Marriage Act and Section 10(1)(x) of the Divorce Act must all take inspiration from such understanding of matrimonial cruelty.
32. We may straight away refer to the decision in Naveen Kohli V. Neelu Kohli ( AIR 2006 SC 1675) where the three judge bench of the Supreme Court was called upon to consider 
 MA 99 & 152 OF 2009 33
the sweep of matrimonial cruelty. Of course they were dealing with undefined matrimonial cruelty under Section 13(1)(1a) of the Hindu Marriage Act. In paragraph 64 of the said decision, their lordships referred to an earlier three bench decision of the Supreme Court in Jayachandran V. Aneel Kumar [2005(2) SCC 22] which understood and accepted matrimonial cruelty as a ground for dissolution of marriage as such “wilful and unjustifiable conduct of such character as to cause danger to life, limb, health and body or mentally or as to give rise to a reasonable apprehension of such danger”. Paragraphs 66 to 68 of the said judgment Naveen Kohli (supra) appear to be crucial and vital to us and we extract the same below:- “66. 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,

 

 MA 99 & 152 OF 2009 34
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.
67. 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
phychological 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

 

 MA 99 & 152 OF 2009 35
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.
68. The foundation of a sound marriage
is tolerance, adjustment and respecting
one another. Tolerance to each other’s
fault to a certain bearable extent has to
be inherent in every marriage. Petty
quibbles, trifling differences should not
be exaggerated and magnified to destroy
what is said to have been made in
heaven. All quarrels must be weighed
from that point of view in determining
what constitutes cruelty in each
particular case and as noted above,
always keeping in view the physical and
mental conditions of the parties, their
character and social status. A too
technical and hypersensitive approach
would be counter-productive to the
institution of marriage. The Courts do not
have to deal with ideal husbands and
ideal wives. It has to deal with particular man and woman before it. The ideal
couple or a mere ideal one will probably
have no occasion to go to Matrimonial
Court”.
33. All courts called upon to consider the plea for a decree for divorce on the ground of matrimonial cruelty under 
 MA 99 & 152 OF 2009 36
any of the enactments referred above must reckon the above observations as beacon lights to ascertain the contours of matrimonial cruelty. To live without the threat or risk of matrimonial cruelty must be reckoned as a Constitutional fundamental right guaranteed under Article 21 of the Constitution. That inalienable human right must ideally be available to all human beings existing on the planet today. More so in a secular socialist Constitutional republic like ours which guarantees right to life. The right to live without matrimonial cruelty in the domestic environment in a secular republic cannot obviously depend on the religious moorings of a citizen. After all religion, more often than not, is not a matter of choice of the citizen. It is a fait accompli with no real option or choice for the individual. It is an accident of birth. If nature or the Intelligent Designer had ordained that you must be born not in this house but in the neighbour’s, you would have belonged to another religion. How many citizens in this country have known, studied and understood his own religion? How many have cared to know, study and understand the neighbour’s religion ? How many have exercised an informed choice about religion ? The 
 MA 99 & 152 OF 2009 37
point is only that liability to suffer matrimonial cruelty in a secular republic cannot at all depend on the religious denomination of the citizen. Notwithstanding the absence of a uniform legislation relating to marriage and matrimonial cruelty despite the mandate/hope of Article 44, judges are bound to interpret the concept of matrimonial cruelty in different personal laws in such a manner as to usher in identical standards of matrimonial cruelty for all citizens. It must shock the judicial conscience that a citizen belonging to any religious denomination can/ought to be compelled to endure greater or graver matrimonial cruelty merely on the basis of his religious faith. That would be negation of the right to equality and right to life guaranteed by the Constitution. We discard the theory that the concept of matrimonial cruelty to entitle a spouse for divorce can be dissimilar and different for persons belonging to different religious faiths merely because different words are used in the relevant personal law statutes. The concept of matrimonial cruelty recognised and accepted in Naveen Kohil must inform the Courts while ascertaining contumaciousness in matrimony whatever the religious faith of the parties. Wherever 
 MA 99 & 152 OF 2009 38
the law offers elbow room to the Courts, they must resort to the exercise of interpretation to navigate the Indian polity to the promised shores under Article 44 of the Constitution.
34. We have already gone through the evidence in the light of the pleadings. We have come to the conclusion that the acts of physical cruelty, the acts of sexual cruelty, the acts of mental cruelty (as reflected in the despatch of Ext.A7 e-mail communication and denial of opportunity to the respondent to work in an MNC) have all been established. The short question is whether these acts on the part of the appellant would constitute matrimonial cruelty of the contumacious variety justifying a decree for divorce under Section 10(1)(x) of the Divorce Act.
35. We have no hesitation to agree that the acts complained of and established clearly constitute acts which cause a reasonable apprehension in the mind of the wife that it would be harmful and injurious for her to live with the respondent. The petitioning spouse/wife cannot be reasonably expected to live with the appellant in the light of the acts of cruelty proved.

 

 MA 99 & 152 OF 2009 39
36. We do also note that the spouses have not been able to resume cohabitation after they started separate residence on 14.05.2004. A period of more than 6 years has elapsed. All efforts made before the trial court and the appellate court to persuade the parties to live together have failed. We do not find it difficult to conclude that the marriage has irretrievably broken down. Our efforts to persuade the parties to honourably settle their disputes either by reuniting or by parting as friends have not succeeded. The irretrievable break down of marriage, it is well established now, cannot be a ground in itself for dissolution of marriage under the Divorce Act unless the parties agree to apply for divorce by mutual consent. The wife expressed her willingness to do so, but the appellant/husband was unwilling to accept separation. It is not as though there has been no irretrievable break down of marriage. An anxious perusal of the counter statement filed by the husband reveals the predicament which he allegedly faced while the matrimony was subsisting. Going by the version of the appellant/husband or by the version of the respondent/wife, it was a tumultuous and traumatic marital life. A reading of the counter statement filed by the 
 MA 99 & 152 OF 2009 40
husband in the divorce petition reveals clearly that even according to the husband, it was not a happy and harmonious married life. It was trauma and suffering that this matrimony brought to both of them going by the versions of both. We fail to understand why the husband does not agree for a harmonious and healthy separation. Mental cruelty is not proved even if the evidence is accepted, it is urged. We have already held that it has been established satisfactorily that the husband must have been responsible for publications of Ext.A7. That finding of fact must necessarily justify the finding on mental cruelty.
37. The learned counsel for the appellant/husband contends that in not granting permission to his wife to take up employment in an MNC (Seimens), the respondent is not guilty of any matrimonial cruelty. He did not permit her to take up employment in that company only in her own interest. She would have been obliged to travel long distance every day, if she were to take such employment. That would have upset their plans of raising a family. It was the compassionate husband concerned in the welfare of his wife who in her interest wanted her not to take up such an employment. There is no question of 
 MA 99 & 152 OF 2009 41
matrimonial mental cruelty on this aspect, contends the counsel.
38. We look at the facts. The wife badly wanted to take up employment with an MNC. That was her life’s ambition. She became cranky and unreasonable when she could not achieve this life’s ambition of hers. According to the husband, she wanted raising a family also to be postponed till she gets a respectable employment consistent with the employment of her husband who was equally qualified. The husband helped her to apply for such an employment. He helped her to acquire the requisite competence. After all this and after putting in great efforts, she secured employment. It was then that the husband adamantly refused her permission to join such employment.
39. No husband living in the present times can claim an anachronistic prerogative to finally rule on the career ambitions of his wife. In matrimony, there must be partnership, affection, caring and sharing. No privilege of the ruler over the ruled can be claimed by the husband over the wife. More so, in a situation like the instant one where the husband really perceived and encouraged the career ambitions of his wife. We are unable to agree that the invocation of the assumed anachronistic 
 MA 99 & 152 OF 2009 42
prerogative of the husband to rule on the career ambitions of his wife to deny her of the opportunity to achieve and accomplish her life’s ambitions in respect of her employment, does not amount to matrimonial mental cruelty.
40. Be that as it may, the point that we have to consider now is the submission urged that there has been irretrievable break down of marriage. As held in Naveen Kohli’s case (supra), the crucial question is whether the petitioning spouse can be reasonably expected to live with the other spouse. If in her perception such continued living would be harmful and injurious to her and such perception of hers is justified by the matters available on record, she is certainly entitled for a decree for divorce under Section 10(1)(x) of the Divorce Act. It is evident that because of the acts alleged, which appear to us to be grave and weighty, the spouses have not been able to live together after their separation on 14.05.2004. This separation for the past 6 years and the inability of the parties to resume cohabitation must certainly be attributed to the events that preceded 14.05.2004. Those acts have made it impossible for the parties to live together as spouses. Those acts we have 
 MA 99 & 152 OF 2009 43
already found do amount to cruelty. The fact of irretrievable break down of marriage, though not a ground in itself to order divorce, convinces us that, incidents prior to 14.05.2004 have made it impossible for the petitioning spouse/wife to live with the appellant/husband. To that extent the test in Naveen Kohli’s case (supra) is answered clearly in favour of matrimonial cruelty.
41. The above discussions lead us to the conclusion that the finding of the court below that the respondent/wife is entitled for a decree for divorce on the ground of matrimonial cruelty under Section 10(1)(x) of the Divorce Act is absolutely justified and the same does not warrant any interference. The challenge on this ground must hence fail.
Ground No.3
42. The court below had found that the husband is not entitled to a decree for restitution of conjugal rights. Any ground which is sufficient to justify a decree for divorce is certainly sufficient to deny the relief of restitution of conjugal rights. We have already found on ground No.2 that the wife is entitled for a decree for divorce under Section 10(1)(x) of the 
 MA 99 & 152 OF 2009 44
Divorce Act. Consequently it has to be held that the rejection of the claim for restitution of conjugal rights is also absolutely justified. The challenge raised on ground No.3 fails.
43. The learned counsel for the wife has filed I.A.No.2292 of 2010. Notwithstanding the inaccuracies and errors in the affidavit filed in support of I.A.No.2292 of 2010, it is submitted that the short prayer therein is that Ext.B2 series (2 deposit receipts) and Ext.B3 series (3 deposit receipts) may be ordered to be released to the petitioner/respondent. The learned counsel for the respondent/wife points out that the operative portion of the decree in O.P.68 of 2005 specifically directs return of the amounts under Exts.B2 and B3 series. We extract the operative portion of the order in O.P.68 of 2005 below: “In the result, O.P.68/2005 is decreed in part; that the respondent is directed to pay the petitioner the amount covered by Ext.B2 series FD receipts and the amount as per the three FD receipts of the South Indian bank mentioned in the petition together with the interest accrued thereon from the date of deposit till payment.”
44. The learned counsel for the respondent/wife submits that inasmuch as Exts.B2 and B3 series have been filed as documents in the joint trial, the respondent/wife was not able to 
 MA 99 & 152 OF 2009 45
request that they be released to her earlier. In the light of the specific directions, it is prayed that Exts.B2 and B3 series may be ordered to be released to the respondent/wife with specific directions to the bank concerned to renew the deposit if necessary and release the proceeds to the respondent.
45. This application is opposed by the learned counsel for the appellant. The learned counsel for the appellant submits that though he has no objection against the release of Ext.B2 series, he has objections against the release of Ext.B3 series. The learned counsel for the appellant submits that actually Ext.B3 series are not F.D receipts which belong exclusively to the wife. According to him, 3 deposit receipts in the name of the respondent/wife issued by the South Indian Bank were there at the time of marriage. When those deposits matured, the appellant allegedly invested some of his amounts also and got the 3 deposit receipts which are now marked as Ext.B3 series. Hence the counsel argues that not the entire amount covered by Ext.B3 series, but only a portion thereof is liable to be released to the respondent.
46. This contention does not appeal to us at all. We have 
 MA 99 & 152 OF 2009 46
extracted the operative portion above. It is very evident that the direction covers the entire amounts covered by Ext.B3 series. In these circumstances, in the absence of an appeal by the appellant against the decision in O.P.No.68 of 2005, he is not entitled to contend that the entire amount covered by these 3 F.D receipts cannot be released to the respondent/wife.
47. The learned counsel for the appellant raises a further plea founded on technicality that the respondent/wife also having not preferred any appeal against the order in O.P.68 of 2005, no such directions relating to execution of the order in the O.P.68 of 2005 is liable to be passed in this judgment. That technical contention though impressive at the first blush, cannot stand closer scrutiny because what the respondent now requests is the release of Exts.B2 and B3 series which remain on the file because they are marked in the joint trial of 3 petitions, appeals from 2 of which are being dealt with by us in this judgment. In fact, the direction sought for is only regarding release of a document marked in the matter relating to the appeal that we are dealing with. We are hence satisfied that I.A.No.2292 of 2010 can be allowed.

 

 MA 99 & 152 OF 2009 47
48. In the result:
a) These appeals are dismissed;
b) The impugned common order is upheld;
c) I.A.No.2292 of 2010 is allowed. Exts.B2 and B3 series, which are marked in the impugned judgment shall forthwith be released by the Registry to the respondent/wife, the petitioner in this I.A. The Registry shall forthwith hand over the same to the respondent/wife (after substituting certified copies in their place for further reference if necessary. There shall be a direction to the Banks concerned – Federal Bank and South Indian Bank to renew the deposits on the instructions of the respondent in accordance with the rules of the bank and on maturity to release the entire amounts covered by those deposit receipts to the respondent/wife, ie. the petitioner in I.A.No.2292 of 2010.
R.BASANT
JUDGE
M.L.JOSEPH FRANCIS
JUDGE

 

mutual divorce

divorce by mutual consent in India

“Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principle. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys. “

——————————————————————————————————————————————

IN COURT OF THE HIGH DELHI AT NEW DELHI

SUBJECT : Divorce Act

 Date of Reserve: September 05, 2008

Date of Order: September 19, 2008

CM(M) 1030/2008

 Mr. Vinay Jude Dias … Petitioner Through: Mr. Sandeep Sethi with Mr. Anshu Mahajan and Mr. Vikas Aggarwal, Advs.

Versus

 Ms. Renajeet Kaur … Respondent

Through:

JUDGMENT:

  1. The petitioner is aggrieved by an order of learned ADJ dated 25th August, 2008 whereby in a Divorce Petition by mutual consent filed by the petitioners, the Court directed personal appearance of both the parties for purpose of its satisfaction regarding an inquiry under Section 10(A) of the Divorce Act.
  1. Notice of the petition was accepted by the respondent in the Court and respondent supported the petition and wanted the petition to be allowed. Thus, the Court has only to examine whether the personal appearance of the petitioner before the Court below was necessary in order to obtain divorce with mutual consent under Section 10(A) of Divorce Act.
  1. In the present case, the special power of attorney in favour of one Mr. Lal Babu Tiwari was executed by the petitioner (husband) to appear before the Court and testify about the contents of the petition. The petitioner has signed the petition before Indian consulate High Commission of India in UK under Section 3(2) of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1947 under which the documents do not require any further evidence.
  1. The learned ADJ relying on Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439 wherein Supreme Court had held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become witness on behalf of party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself, considered that the attorney cannot depose in the Court to satisfy the inquiry as required under Section 10(A) of Divorce Act.
  1. There can be no dispute that the attorney of the petitioner can appear in the Court on behalf of the party and do the act as specified in power of attorney. An attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by anyone who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions/directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court had not debarred an attorney from appearing in the witness box but the Supreme Court has stated the facts which are only in the knowledge of the principal, about those facts attorney cannot testify in the Court.
  1. This Court in Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188 held that if both the parties, by way of affidavits or through counsel, state that they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the Court should not record its satisfaction as envisaged under Section 13-B(2) of Hindu Marriage Act, despite the fact that parties had not appeared in person and pass a decree for divorce.
  1. The Division Bench of Calcutta High Court in Annalie Prashad vs. Romesh Prashad AIR 1968 Calcutta 48 had made following observations : 3. In our opinion, neither of the above two reasons can be sustained in law. The Special Marriage Act by Section 40 attracts the Code of Civil Procedure subject, of course, to the other provisions of the said statute and to such rules as the High Court may make in that behalf. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard, would necessarily require their personal appearance or presence before the Court. We do not, however, think that that is the consequence of the words “hearing the parties’` and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. In the premises, Order 19 of the Code of Civil Procedure would be attracted by the above special statute as part of the Code and would not be excluded either expressly or by necessary implication.
  1. Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principle. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys.
  1. I therefore allow this petition. The order of the Trial Court insisting on the personal appearance of the parties is set aside. The attorneys are permitted to make statement before the Court below.

 Sd./- September 19, 2008

 

 SHIV NARAYAN DHINGRA J.

Ex parte divorce decree by foreign court invalid.

– “From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P.148/2011 % Date of Decision: April 22, 2013

PRITAM ASHOK SADAPHULE ….. Petitioner Through: Mr.Rakesh Taneja, Advocate
versus
HIMA CHUGH …. Respondent Through: Mr.Prashant Mendiratta, Adv.

CORAM: HON’BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J. *

1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed. 2. Briefly the facts relevant for the disposal of the present petition are as under:-
The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order.
CRP 148/2011 Page 2 of 10
in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.

4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.

6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken
CRP 148/2011 Page 3 of 10
down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made “absolute”. A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.

7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
8. Aggrieved with the same, present petition is filed.

9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated
CRP 148/2011 Page 4 of 10
as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.

10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.

11. Learned counsel for the respondent has contended that judgment of
CRP 148/2011 Page 5 of 10
the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.

12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

“12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court
CRP 148/2011 Page 6 of 10
should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.
Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of
CRP 148/2011 Page 7 of 10
Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign
CRP 148/2011 Page 8 of 10
judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable
CRP 148/2011 Page 9 of 10
section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.” 13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.

14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.

15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the
CRP 148/2011 Page 10 of 10
divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.

16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC. In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.

VEENA BIRBAL, J APRIL 22, 2013 ssb

 

 

Meaning of  irretrievable breakdown of a marriage.

The situation that exists when either or both spouses no longer are able or willing to live with each other, thereby destroying their Husband and Wife relationship with no hope of resumption of spousal  duties.

The irretrievable breakdown of a marriage provides the ground for a no-fault divorce in many jurisdictions.

 

Is the ground for  irretrievable breakdown of a marriage is valid in India for Hindus?

 

“In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli’s case (supra):

 

Sanghamitra Ghosh vs Kajal Kumar Ghosh on 20 November, 2006

Author: D Bhandari

Bench: G Mathur, D Bhandari

CASE NO.:

Transfer Petition (civil) 228 of 2004

PETITIONER:

Sanghamitra Ghosh

RESPONDENT:

Kajal Kumar Ghosh

DATE OF JUDGMENT: 20/11/2006

BENCH:

G.P. MATHUR & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T

WITH

TP (CRL.) NOS.105 & 171 OF 2004, TP (CIVIL) NO.727 OF 2004 AND TP (CIVIL) NO.168 OF 2006.

Dalveer Bhandari, J.

The marriage of the petitioner was solemnized on 8.11.1999 with the respondent as per Hindu rites and customs and was duly registered with the Registrar of Marriage. The parties have closely known each other before marriage and the marriage was solemnized according to the wishes of the petitioner and the respondent.

A male child was born out of the wedlock but, unfortunately, the parties did not have a smooth marital life. According to the allegations of the petitioner, Sanghamitra Ghosh, she was physically and mentally tortured by the respondent and his parents. According to her, the degree of torture increased day by day and eventually on 14.1.2001 she was driven out of the marital home along with her minor child. Thereafter, the petitioner moved to her parents and started with them from 15.1.2001. The respondent never cared to inquire about the petitioner and her child and has never sent any money either for the maintenance of the petitioner or her child.

In these circumstances, she was forced to file a criminal complaint on 4.8.2002 under Section 498A of the Indian Penal Code read with Sections 3 & 4 of Dowry Prohibition Act.

According to the version of the petitioner, she was totally dependant on her father, who himself was very old and was suffering from cancer and a considerable amount had to be spent for his treatment. In these circumstances, the petitioner became an additional burden on her parents. In order to maintain herself and her child, she took up a petty job in the ICICI bank on a meagre salary. The petitioner now has been transferred to Bangalore, as a result of which it had become extremely difficult for her to attend the court proceedings in West Bengal. It is very expensive and time consuming. In these circumstances, the petitioner had filed a transfer petition praying that matrimonial suit no.437 of 2002 titled as “Kajal Kumar Ghosh versus Sanghamitra Ghosh” filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and pending in the court of District Judge, Barasat be transferred to the court of competent jurisdiction at Bangalore.

This Court on 26.3.2004 issued a show-cause notice on the transfer petition. Reply to the transfer petition was filed by the respondent. The datewise sequence of events given by the respondent are contrary to what had been averred by the petitioner. According to the respondent, the petitioner was not driven out of the matrimonial home. In fact, she had walked out of the matrimonial home. The respondent further submitted that their marriage broke down due to the basic difference in their social status, educational and cultural background, lack of tolerance and inability to adopt and adjust to a life of a middle class family.

During the pendency of this petition, the parties have explored the possibility of an amicable settlement. The matter was adjourned from time to time to give the parties adequate time to mutually and amicably settle their differences. The parties, despite persuasion of the Court, have not been able to sort out their differences and decided to live separately. According to the parties, their marriage has been irretrievably broken down and reconciliation is out of question.

Learned counsel for the parties have prayed that in the peculiar facts and circumstances of this case, this Court may grant a decree of divorce by mutual consent. On 15.9.2006, the parties have jointly filed a petition where they have spelt out the Terms of Compromise. The Terms of Compromise read as under: “1. Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Kumar Ghosh in the Court by way of Demand Draft in favour of the petitioner.

2. Both the parties further agree to let the mother/Smt. Sanghamitra Ghosh have the permanent custody of the minor son.

3. However, the father, Kajal Ghosh will be entitled to have visitation rights to the child at the residence of the petitioner at a mutually convenient date with prior permission.

4. Both the parties also agree to forthwith withdraw/close all cases filed against each other and pending before the various courts in Kolkata and Bangalore. These cases are:

(i) Reference Case No.210/2002

pending before the learned

SDM Court, Burrackpore,

West Bengal.

(ii) MC No.713/2004 pending

before the Principal Family

Judge, Bangalore.

(iii) Reference Case No.M-313 of

2003 pending before the

learned 5th Judicial

Magistrate Court,

Burrackpore, West Bengal.

(iv) Matrimonial Suit

No.437/2002 pending before

the District Judge, Barasat,

West Bengal.

(v) Guardianship Case

No.66/2004 pending before

the District Judge, Barasat,

West Bengal.

5. Both the parties undertake that they shall adhere to the terms of

compromise/settlement and that they shall not litigate in future and have no claim against each other whatsoever in future.”

It may be relevant to mention that on 16.10.2006, respondent Kajal Kumar Ghosh had filed additional affidavit in which detailed particulars of the matters pending inter se between the parties have been enumerated. On the same day, the parties had also filed comprehensive terms of their compromise. The said terms are set out as under:

“Both the parties viz. the petitioner and the respondent have voluntarily and with their free will, arrived at a compromise/settlement, which has been reduced into writing and which reads as under:

1. Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife, Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Ghosh in Court by way of the following Demand Drafts drawn on Allahabad Bank payable in her favour at Bangalore:-

a) DD No.634519 dated 11.9.2006 for Rs.2,50,000/-

b) DD No.634520 dated 11.9.2006 for Rs.2,50,000/-.

c) DD No.634521 dated 11.9.2006 for Rs.2,50,000/-

d) DD No.634522 dated 11.9.2006 for Rs.2,50,000/-.

2. Both the parties further agree to let the mother/Sanghamitra Ghosh have the permanent custody of the minor son.

3. However, the father/Kajal Ghosh will be entitled to have visitation rights to the child at the residence of his wife at a mutually convenient date with prior permission.

4. The following cases are pending between the parties before the various courts. These cases are:

i) REFERENCE CASE NO.210/2002

pending before the Learned SDM

Court, Burrackpore, West Bengal

filed by the wife/Sanghamitra under Section 498A IPC read with Sections 3 and 4 of the Dowry Prohibition

Act.

TP (CRIMINAL) NO.171/2004 which has been filed by the wife before this Hon’ble Court arises out of these proceedings.

ii) MC NO.713/2004 pending before the Principal Family Judge,

Bangalore filed by the wife under Section 13(1)(a) and (b) of the Hindu Marriage Act for grant of divorce.

TP (CIVIL) NO.727/2004 which has been filed by the husband before this Hon’ble Court arises out of these proceedings.

iii) REFERENCE CASE NO.M-313 OF

2003 pending before the Learned 5th Judicial Magistrate Court,

Burrackpore, West Bengal filed by wife under Section 125 CrPC for

maintenance.

TP (CRIMINAL) NO.105/2004 which has been filed by the wife before this Hon’ble Court arises out of these proceedings.

iv) MATRIMONIAL SUIT NO.437/2002

pending before the District Judge, Barasat, West Bengal filed by the husband under Section 9 of the

Hindu Marriage Act for restitution of conjugal rights.

TP (CIVIL) NO.228/2004 which has been filed by the husband before this Court arises out of these proceedings.

v) GUARDIANSHIP CASE NO.66/2004

pending before the District Judge, Barasat, West Bengal filed by the husband under Section 25 of the

Guardians and Wards Act for

custody.

TP (CIVIL) NO.168/2006 which has been filed by the wife before this Court arises out of these proceedings.

5. Both the parties humbly request this Court in exercise of its powers to do complete justice to the parties,

quash/close all the above pending proceedings in view of this settlement as the parties do not intend pursuing the litigation any further.

6. Both the parties humbly request that all the transfer petitions pending in this Court (as mentioned earlier in para 4) to be dismissed as infructuous.

7. Both the parties submit that their marriage has broken down irretrievably and that there is no possibility of the parties living together. In these circumstances, both parties would humbly request this Court in exercise of its powers to grant a decree of divorce by mutual consent.

8. Both the parties undertake that they shall adhere to the terms of

compromise/settlement and that they shall not litigate any further and will have no claim against each other hereafter.”

Learned counsel appearing for the parties have prayed that in the peculiar facts and circumstances and in the interest of justice, this Court, in exercise of its jurisdiction under Article 142 of the Constitution, may grant a decree of divorce by mutual consent.

Learned counsel for the parties have also drawn the attention of this Court to the decision of Harpit Singh Anand v. State of West Bengal reported in (2004) 10 SCC 505. In this case, in almost similar circumstances, this Court in order to put a quietus to all litigations between the parties and not to leave any room for future litigation and on the request of the said parties, exercising the power vested under Article 142 of the Constitution, dissolved the marriage and granted a decree of divorce by mutual consent.

In the case of Kanchan Devi v. Promod Kumar Mittan & Another reported in (1996) 8 SCC 90, where the marriage of the parties was irretrievably broken down, this Court exercised the power under Article 142 of the Constitution of India and passed the following order: “6. In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce. All pending cases arising out of the matrimonial proceedings and the maintenance

proceedings under Section 125 Cr. PC pending between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement. This appeal is disposed of in the above terms.”

In the case of Ashok Hurra v. Rupa Bipin Zaveri etc. reported in (1997) 4 SCC 226, this Court while dealing with a matrimonial matter quoted few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955  “Irretrievable Breakdown of Marriage”  dated 7.4.1978. We deem it appropriate to reproduce some excerpts from the said report as under:

“Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.

* * *

Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage.

* * * The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, 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 there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the 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 facade, when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. 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.

* * * Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage –“breakdown”- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage  “irretrievable breakdown”.”

In order to do complete justice in the matrimonial matters, this Court has been less hesitant in exercising its extra-ordinary jurisdiction under Article 142 of the Constitution. To illustrate this fact, reference of some decided matrimonial cases is given hereinbelow.

In Swati Verma v. Rajan Verma & Others reported in (2004) 1 SCC 123, this Court came to a definite conclusion that the marriage between the parties has irretrievably broken down and with a view to restore good relationship and to put quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, this Court granted a decree of divorce by mutual consent while exercising its power under Article 142 of the Constitution.

This Court while exercising its unique power vested under Article 142 of the Constitution in a transfer petition in the case of Madhuri Mehta v. Meet Verma reported in (1997) 11 SCC 81, observed as under: “During the course of hearing of this transfer petition, parties have jointly made an application under Section 13-B of the Hindu Marriage Act, 1955 before us praying for dissolution of their marriage by mutual consent and in the body of the application a provision has been made for their only child. Though the child has been conferred the right to visit his father as and when he likes, there is no corresponding right with the father to visit his child. That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctors. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order.

The transfer petition and the divorce petitions are disposed of accordingly.”

In another transfer petition in the matrimonial matter, in Anita Sabharwal v. Anil Sabharwal reported in (1997) 11 SCC 490, this Court was of the view that there was no hope for the parties to live together and passed the following order: “A divorce petition being HMA Case No.863 of 1994 preferred by the respondent- husband was pending in the Court of Shri A.K. Pathak, Additional District Judge, Delhi. The instant transfer petition was moved by the petitioner-wife seeking transfer of the said case to the Family Court, Mumbai. During the pendency of the transfer petition, parties as well as their counsel had on 9.9.1996 put on record a compromise deed wherein they have agreed to get divorce by mutual consent. Strictly speaking, the preconditions of such claim have not been laid inasmuch as a petition to that effect has not been filed under Section 13-B of the Hindu Marriage Act, 1955 (the Act) before the first matrimonial court, and that the statutory period of 6 months has not even commenced. Be that as it may, it stands established beyond doubt on our summoning of the original file  HMA Case No.863 of 1994  that the parties were married about 14 years ago, have spent the prime of their life in acrimony and litigating and that it is time that their mutuality bears some fruit in putting them apart. Therefore, we take the divorce petition HMA Case No.863 of 1994 on our own file and import thereto the compromise deed put on record by the parties jointly. In terms therewith, a sum of Rs.7 lakhs stands paid to the wife by means of 3 separate bank drafts of Rs.2 lakhs, Rs.2 lakhs and Rs.3 lakhs. Recurring provision has been made therein for their children’s education and visitation rights of the father. We have questioned the parties and they are eager to dissolve the matrimonial tie so that they can rearrange their lives well in time. We, therefore, in the spirit of Section 13-B of the Act, and in view of the fact that all hopes to unite them together have gone, hereby grant to the parties divorce by a decree of dissolution by mutual consent to end their prolonged unhappiness. Ordered accordingly. The transfer petition stands disposed of.”

We have heard learned counsel for the parties. This Court adjourned the proceedings from time to time to ensure that the parties may reconcile the differences and live together again, but this has not happened. It is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But as aptly observed by this Court, in a recent decision in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558, that when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist.

In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli’s case (supra).

In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution.

In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties.

On consideration of the totality of the facts and circumstances of the case, we deem it appropriate to pass the order in the following terms: a) The parties are directed to strictly adhere to the Terms of Compromise filed before this Court and also the orders and directions passed by this Court;

b) We direct that the cases pending between the parties, as enumerated in the preceding paragraphs, are disposed of in view of the settlement between the parties; and

c) All pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement.

These transfer petitions are accordingly disposed of. In the facts and circumstances of the case, we direct the parties to bear their own costs.

 

 

ex-parte divorce granted by Foreign Court Invalid: Delhi High Court

 

The Delhi high court has held that divorce granted by a foreign court on the ground of “irretrievable break down of marriage” is not valid in India.

The court said this was because the Hindu Marriage Act did not recognize this ground valid for dissolution of marriage.

“Both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the HMA…” Justice Veena Birbal said citing a supreme court judgment.

The court said this while rejecting the plea of an Indian-origin UK resident to drop the divorce proceedings initiated by his wife in Delhi on the ground that he had already secured a divorce decree from a UK court in 2011.

From the records the judge found that the UK court’s was an ex-parte decree (without hearing the wife) and she had not submitted herself to the jurisdiction of the foreign court.

“She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree ‘absolute’…… In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court,” the court said.

They couple fell in love after meeting each other in UK in 2004 and got married in Delhi in March 2005. With the passage of time, disputes arose between them as a result of which they could not live together.

She came back to Delhi in 2009 and filed a divorce petition in a court here leveling charges of  domestic violence, cruelty and assault against her husband.

Thanks to Hindustan Times for this articles and resources:

False complaint by wife is a valid ground for divorce.

“From the above discussions and circumstances it is clear that the appellant was never willing and ready to live with the respondent and to discharge her marital obligations without the consent of the respondent and any reasonable cause. The suit for restitution of conjugal rights was filed by her only to create evidence, and when the suit was not contested and decreed on consent by the respondent, the appellant cleverly found out a way of lodging false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. so that she may have an excuse not to comply with the decree. The circumstances discussed above clearly show that the F.I.R. was not only false but was also malicious and without any reasonable ground and was to make out the defence.”

—————————————————————————————————————————————————————————————————————-

 

Smt. Archana vs Dr. P.K. Tomar on 4 February, 2003

Equivalent citations: AIR 2003 All 214, 2003 (2) AWC 1119

Author: B Rathi

Bench: B Rathi

JUDGMENT

B.K. Rathi, J.

1. This is an appeal under Section 96 of the C.P.C. against the judgment and order dated 7.2.2002 passed by District Judge, Ghaziabad by which he allowed the petition of the respondent and decreed the petition for dissolution of marriage by the decree of divorce.

2. The respondent who is resident of C-538 Sarojini Nagar, New Delhi filed the petition against the appellant alleging that the appellant is resident of 453/5 Brahampuri, Meerut and is in service as social worker in L.L.R. Medical College, Meerut. The marriage between the parties was solemnized on 13.12.1996 at Meerut according to Hindu rites and ceremonies. That at the time of the marriage it was agreed that the appellant will resign from the job at Meerut and Join the company of the respondent at Delhi and discharge her marital obligations. However, the appellant did not resign from the job as agreed and on the other hand, her behaviour became intolerable and cruel. She several times humiliated the respondent and his parents saying that they are persons of low standard and did not know as to how to live in style. The appellant refused to stay with the respondent and also to resign from the job and, therefore, it was agreed that she will continue in job but will reach the house of the respondent on every Saturday, stay for Sunday and discharge her marital obligations and will return back to Meerut to join the duties on Monday. That the appellant also abuses the mother of the respondent on the ground of wearing jeans or salwar suit and hurled abuses on the respondent and his parents. She stopped coming to Delhi on week ends and started living exclusively with her parents since July, 1997.

3. That the appellant became pregnant and she gave birth to a male child on 19.11.1997 in Medical College, Meerut. The respondent and his parents came to see the child on the next day but they were ill-treated and abused and were not permitted to have access to the newly born baby. The appellant completely deserted the respondents from July, 1997.

4. It is further alleged that the respondent filed a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights at Delhi which has been stayed. The appellant also filed a petition under Section 9 of the Hindu Marriage Act before Judge, Family Court, Meerut for restitution of conjugal rights against the respondent being Suit No. 378 of 1998. The respondent appeared in the case and denied the allegations made by the appellant in the petition. However, he moved an application before the Judge, Family Court, Meerut to decree the suit of the respondent for restitution of conjugal rights and she may be directed to go with the appellant to his house so that they may start family life afresh. The suit was accordingly decreed on 24.7.1999. He also paid a sum of Rs. 2.500 awarded against the appellant under Sections 24 and 26 of the Hindu Marriage Act. Immediately thereafter, on that day the appellant moved an application that the respondent be directed to go directly from the Court to his house on which the respondent endorsed that she requires one week time to arrange for leave regarding her service and to make other arrangements. Accordingly, one week time was granted and, therefore, the respondent on 1.8.1999, went to the house of the appellant along with his brother and other relatives to take her, but the appellant refused to accompany him and insulted the respondent and his relatives. Then the respondent came to know that a false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. on 28.7.1999 has been lodged at police station Manila Thana, Meerut by the appellant against the respondent and his other family members. Therefore, the decree for dissolution of marriage by divorce was sought by the respondent under Clauses (i-a) and (i-b) of Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) on the ground of cruelty and desertion.

5. The appellant contested the suit and filed written statement denying the entire allegations. She alleged misbehaviour with her and also made allegations of demand of dowry and cruelty against the respondent. She further alleged that she and her father were beaten by the respondent and his companions on 24.7.1999 in the Court itself and again on 26.7.1999 at her house in Brahampuri, Meerut in connection with demand for dowry, regarding which the case was got registered by her for offences under Sections 498A, 323, 506, I.P.C. at police station Mahila Thana, Meerut. She further alleged that after the birth of the male child, the parents of respondent started demanding Rs. 1 lac and a Maruti Car in dowry. She further alleged that she never went to Delhi and never stayed at the house of the respondent in Sarojini Nagar, New Delhi.

6. That the respondent is resident of town Baraut of District Meerut and she lived with the respondent at Baraut only. She further alleged that attempt was made to murder her by putting fire after sprinkling kerosene oil and also to murder her by poisoning. That inspite of the same, the appellant wants to keep the matrimonial tie and is ready to live with the respondent and to perform her matrimonial obligations for which she also filed the suit which was decreed on 24.7.1998, That the petition is, therefore, liable to be dismissed.

7. The District Judge, Ghaziabad framed necessary issues and recorded the findings of cruelty and desertion in favour of respondent and held that the respondent is entitled to the decree of divorce under Clauses (i-a) and (i-b) of Section 13 of the Act. He accordingly decreed the suit. Aggrieved by it, the present appeal has been preferred.

8. I have heard Sri Vijay Prakash, learned counsel for the appellant and Sri D. N. Wall, learned counsel for the respondent at length and have also perused the entire evidence and record.

9. The first argument of the learned counsel for the appellant is that the District Judge, Ghazlabad has erred in decreeing the suit under Section 13(1-A)(ii) of the Act. I agree with the argument of the learned counsel. This plea was neither raised in the plaint nor any issue was framed regarding it. On the facts also, the respondent is not entitled to the decree of divorce on this ground for the reason that the decree for restitution of conjugal rights in favour of the appellant was passed on 24.7.1999 and the present suit was filed on 6.3.2000. Therefore, one year had not elapsed between the date of the decree for restitution of conjugal rights and the filing of the suit.

Therefore, this ground was not available to the respondent. It may also be mentioned that a decree for restitution of conjugal rights was in favour of the appellant and, therefore, for this reason also, this ground cannot be availed of by the respondent. It has been argued that the District Judge at his own has decreed the suit on this ground also. In view of the above, I find this part of the judgment of the trial court is not correct and the respondent is not entitled to the decree for divorce under Section 13(1-A)(ii) of the Act. The first argument of the learned counsel for the appellant, therefore, succeeds.

10. However, this finding in favour of the appellant on the first argument is not material as the respondent in the suit has sought decree for restitution of conjugal rights only on the ground of cruelty and desertion. Therefore, the question that arises for decision is whether the respondent is able to prove the same and is entitled to the decree for dissolution of marriage by divorce under Clauses (i-a) and (i-b) of Section 13 of the Act. I consider the allegations of the each clause separately.

11. Firstly, I consider whether the respondent had proved that the appellant has deserted her for a continuous period of not less than two years immediately preceding the presentation of the petition. The learned counsel for the appellant In support of the argument has referred to the decision of the Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40, in which the word “desertion” has been explained. It has been held by the Apex Court that it is for the person who alleges desertion to prove it. It is for the petitioner to establish beyond reasonable doubt to the satisfaction of the Court the desertion throughout the entire period of two years before the petition was filed and that such desertion was without just cause. The meaning and impact of word desertion has also been explained by the Court in this case. It was observed :

“If the spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without Intending permanently to cease cohabitation. It will not amount to desertion. For the offence of desertion, so far as the deserting spouse Is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus 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.”

On the basts of it, it has been argued that there Is absolutely no evidence to show that there was intention of the appellant to bring cohabitation permanently to an end, and there was reasonable cause for temporary desertion. However, this fact has to be decided from the circumstances of the case. The Apex Court in the above judgment further observed that :

“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.”

In the light of the dictum and discussion as explained by the Apex Court in the case, it is to be seen whether the respondent who sought the relief is able to prove beyond reasonable doubt the factum of separation and desertion without his consent and the absence of the reasonable cause.

12. In this case what transpired between the parties or with the parents remained inside the close doors of the house and, therefore, there can be no evidence except the statements on oath. It can be inferred as to which version is correct for the circumstances alone. The repeated observations of the District Judge in the finding of Issue No. 1 that there is no reliable and clinching evidence in support of the allegation of the respondent are not correct. Instead of considering the evidence of the parties, the trial court should have considered the circumstances which can never lie. I also agree with the statement of the learned counsel for the appellant that the trial court has wrongly relied on the decision of Saroj v. Dashrath, II (1986) DMC

277. This decision can be of help to the trial court had there been a finding that the false F.I.R. was lodged by the appellant and the same is also malicious. I find that no such finding has been recorded by the trial court. If a correct F.I.R is lodged or for that purpose, even if some exaggeration of the incident is given, it cannot amount to cruelty. Without such a finding, the decision of Saroj v. Dashrath (supra), is of no help to the respondent.

13. Coming to the circumstances of the case, it may safely be said without considering the evidence that certain allegations of the appellant are false. The respondent no doubt is the resident of the town Baraut but is living in House No. C-538 Sarojini Nagar, New Delhi where he is also in service since before the marriage. Therefore, the allegation of the appellant that she never went to the house of respondent at Sarojini Nagar, New Delhi nor ever stayed there appears to be white lie. There is hardly a distance of 50 to 60 kms between Meerut and Delhi and It cannot be accepted that the appellant never went to the house of the respondent at Sarojini Nagar Delhi.

14. The appellant was in service at Meerut and is also resident of Meerut. The party lived together for some time may be at Meerut or Delhi which is not relevant for the consideration of the point at present. However, it Is admitted that the appellant withdrew from the company of the respondent since July, 1997 and did not go to the house of the appellant. She filed a suit for restitution of conjugal rights being suit No. 378 of 1998 in the Court of Judge, Family Court, Meerut. The question is whether the appellant was sincerely willing for the restitution of the conjugal rights or filed the above suit only to make out the defence for future litigation. At the first date, the respondent paid the entire amount awarded to the appellant in the above suit. Though he filed written statement denying the allegations but without delay, he moved an application that the suit may be decreed and he is ready to keep the appellant. The suit was decreed on 24.7.1999 and on that very day, he made a written request to the Court to direct the appellant to accompany him. It was the appellant who sought one week time in writing on the pretext such as she has to arrange for leave, etc. This request was accepted by the Court and one week time was allowed, therefore, the respondent alleged that he went on 1.8.1999 to the house of the appellant to take her, but she refused to come. The reason being that in the meantime, the appellant lodged an F.I.R. on 28.8.1999 at Mahila Thana, Meerut for offences under Sections 498A, 323, 506, I.P.C. against respondent and his family members. From the circumstances of the case, it appears that it was totally a false F.I.R. The respondent offered to take the appellant from the Court itself. If it is so, where is the question of demand of dowry before taking the appellant to house by the respondent. Apart from this in paragraph 13 of the written statement, it was pleaded by the appellant that she and her father were assaulted in the Court campus on 24.7.1999 itself by the respondent and his companions and again on 26.7.1999 at her house 453/5 Brahampuri, Meerut. It is important to mention that both these allegations also appear to be false. The reason being that in defence, the appellant examined herself and did not produce any other evidence in support of the allegation. She did not have the courage to say in the Court on oath that she and her father were assaulted in the Court on 24.7.1999 by the respondent and his parents, This allegation of para 13 of the written statement was not supported in the statement and, therefore, this allegation is certainly false.

15. Regarding the other incident of assault dated 26.7.1999, there is no reason as to why the F.I.R. of the same was lodged after two days at Mahila Thana on 28.7.1999. It may also be mentioned that it is not alleged that any injury was caused to the appellant or any other member of her family. It is important to mention that the respondent along with his family members could not have reached and assaulted the appellant and her family members at her house in Brahampuri, Meerut for the reason that they could not have escaped from there after assaulting her as he had no place to hide in Meerut and is living in Delhi. The respondent could not have escaped from the house of the appellant after assaulting her and her father on 26.7.1999 and therefore, the reason of assault is also unnatural.

16. It has been argued by the learned counsel for the appellant that the police on investigation found the case to be correct and submitted charge-sheet in the Court. It is contended that the Court of Magistrate will decide regarding the correctness of the allegations. I am unable to agree with the argument of the learned counsel. The copy of the charge-sheet has been filed and is on the record of the trial court. This shows that the charge-sheet has been submitted for offences under Section 323 and 504, I.P.C. only and no charge-sheet has been submitted under Section 498A, I.P.C. thereby showing the allegations of demand of dowry and cruelty was found to be incorrect even by the police. No doubt, the criminal court alone is competent to decide whether any offence has been committed by the respondent or not, but that decision is not relevant for the civil court and judgment is not admissible as provided under Sections 40 to 44 of the Indian Evidence Act. The question whether the F.I.R. was false or correct being relevant for decision of this petition, it has to be decided on the basis of the evidence adduced in this petition. The civil Court cannot look forward or is dependent for a finding of the criminal court on this point to assist the civil court. Therefore, whatever is decided by the criminal court is irrelevant, and it has to be decided independently by the civil court whether the F.I.R. was false or not as this question arises for decision in this petition.

17. There are also other false allegations of the appellant. In para 36 of the written statement, she has mentioned that attempt was made to give her poison in the food. In para 33, she further alleged that attempt was made to burn her by putting fire to her. This is the bald statement made for the first time in the written statement of this case which has not been corroborated by any evidence. No F.I.R. was lodged earlier regarding any such incident nor any injury was caused. The date, time and place of these incidents have not been disclosed. It may also be mentioned that had it been so and repeated attempt on her life would have been made, she could have never agreed to go and live with the respondent. However, she has also offered to go and live with the respondent. The allegation that she never went to the house of respondent in Sarojini Nagar, Delhi ts also incorrect. The respondent examined herself as P.W. 1, his elder brother Dilawar Singh Tomar P.W. 2, brother-in-law Mahabir Singh P.W. 3 and father Ikbal Singh as P.W,

4. All of them have denied the allegations of the appellant. They have also stated that they want to keep the appellant and never treated her with cruelty. On the other hand, the appellant misbehaved and Insulted them and left the house without any reasonable cause. They have also denied the allegations of demand for dowry and assault.

18. From the above discussions and circumstances it is clear that the appellant was never willing and ready to live with the respondent and to discharge her marital obligations without the consent of the respondent and any reasonable cause. The suit for restitution of conjugal rights was filed by her only to create evidence, and when the suit was not contested and decreed on consent by the respondent, the appellant cleverly found out a way of lodging false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. so that she may have an excuse not to comply with the decree. The circumstances discussed above clearly show that the F.I.R. was not only false but was also malicious and without any reasonable ground and was to make out the defence.

19. From the above discussions, it is, therefore, apparent that the appellant deserted the respondent for a continuous period of more than two years before the presentation of the petition. Therefore, the respondent is entitled to the decree for divorce under Clause (ib) of Section 13 of the Act.

20. As regards the allegations of cruelty and the decree of divorce under Clause (i-a) of Section 13 of Act, it does not require a long discussion as facts and evidence have already been narrated. As already said, there can be no corroborative evidence of what happened between the parties inside the four walls of the house and the matter has to be decided from the circumstances of the case. The marriage took place on 13.12.1996 and a male child was born to the appellant on 19.11.1997. The respondent was living in Sarojini Nagar, Delhi since before the marriage and according to the plaint allegations, he is in service at Delhi from 9.9.1991. The appellant in para 22 of the written statement has alleged that she never went to the house of the respondent in Sarojini Nagar, Delhi. This house was very near to Meerut and would have hardly taken one or two hours to her to reach from Meerut to the house of the respondent. But she never went to the house of the respondent who is her husband. Whether this act of the appellant does not amount to cruelty? The natural answer should be that it is certainly a cruelty as the wife never visited the house of her husband who is living at a distance which may be covered in less than two hours.

21. The lodging of the false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. without any reasonable cause and maliciously also amounts to the mental cruelty.

22. It has also been argued by the learned counsel for the appellant that there is no finding of the trial court that act of cruelty of the appellant has not been condoned by the respondent. That this finding is required to be recorded under Section 23(1)(b) of the Act and in its absence, the suit cannot be decreed. The learned counsel has relied on the decision of Dr. N. G. Dastane v. Mr. S. Dastane. AIR 1975 SC 1534. It was observed by the Apex Court :

“Even though condonation is not pleaded as a defence by the respondent it is Court’s duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if the Court is satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.”

23. In view of the decision of the Apex Court and the argument of the learned counsel for the appellant, I agree that the trial court should have recorded a finding that the act of cruelty has not been condoned by the respondent before granting the decree, I find that no such finding has been recorded. However, for this reason, the decree of the trial court cannot be set aside. This is the first appeal and this Court is required to consider the facts as well as the law. If the trial court ignored or neglected to record a finding on the point of fact, it can be examined by this Court and a finding can be recorded.

24. The circumstances of this case do not show that the act of cruelty was ever condoned by the respondent. He has not condoned the act of the appellant in lodging false F.I.R. for demand of dowry, cruelty and assault. That matter has not been compromised and he and other members of his family are still facing trial. It cannot be accepted that the said cruelty has been condoned by the respondent. The appellant does not say that she was permitted by the respondent to live at Meerut permanently and not to come to his house. Therefore, this act of cruelty has also not been condoned.

25. I accordingly find that the act of cruelty has not been condoned by the respondent, therefore, the decree of divorce granted by the trial Judge cannot be disturbed.

26. The appeal fails and is hereby dismissed. However, in the circumstances of this case, the parties are directed to bear their own costs of this appeal.