In A. Jayachandra v. Aneel Kaur6 it has been
held thus: -
“If acts subsequent to the filing of the divorce
petition can be looked into to infer
condonation
of
the
aberrations,
acts
subsequent to the filing of the petition can be
taken note of to show a pattern in the
behaviour and conduct.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.
OF 2014
(Arising out of S.L.P. (C) No. 17 of 2010)
Dr. (Mrs.) Malathi Ravi, M.D.
... Appellant
Versus
Dr. B.V. Ravi, M.D.
...Respondent
JUDGMENT
Dipak Misra, J.
2.
Marriage as a social institution is an affirmance of
civilized social order where two individuals, capable of
entering into wedlock, have pledged themselves to the
institutional norms and values and promised to each other
a cemented bond to sustain and maintain the marital
obligation. It stands as an embodiment for continuance of
the human race.
Despite the pledge and promises, on
certain occasions, individual incompatibilities, attitudinal
2
differences based upon egocentric perception of situations,
maladjustment
non-adjustment
phenomenon
or
propensity
for
or refusal for adjustment gets eminently
projected that compels both the spouses to take intolerable
positions abandoning individual responsibility, proclivity of
asserting superiority complex, betrayal of trust which is the
cornerstone of life, and sometimes a pervert sense of
revenge, a dreadful diet, or sheer sense of envy bring the
cracks in the relationship when either both the spouses or
one of the spouses crave for dissolution of marriage –
freedom from the institutional and individual bond.
The
case at hand initiated by the husband for dissolution of
marriage was viewed from a different perspective by the
learned Family Court Judge who declined to grant divorce
as the factum of desertion as requisite in law was not
proved but the High Court, considering certain facts and
taking note of subsequent events for which the appellant
was found responsible, granted divorce.
The High Court
perceived the acts of the appellant as a reflection of attitude
of revenge in marriage or for vengeance after the reunion
pursuant to the decree for restitution of marriage. The
3
justifiability of the said analysis within the parameters of
Section 13(1) of the Hindu Marriage Act, 1955 (for brevity
“the Act”) is the subject-matter of assail in this appeal, by
special leave, wherein the judgment and decree dated
11.09.2009 passed by the High Court of Karnataka in MFA
No. 9164 of 2004 reversing the decree for restitution of
conjugal rights granted in favour of the wife and passing a
decree for dissolution of marriage by way of divorce allowing
the petition preferred by the respondent-husband, is called
in question.
3.
The respondent-husband, an Associate Professor in
Ambedkar Medical College, Kadugondanahalli, Bangalore,
filed a petition, M.S. No. 5 of 2001 under Section 13(1) the
Act seeking for a decree for judicial separation and
dissolution
of
marriage.
However,
in
course
of
the
proceeding the petition was amended abandoning the prayer
for judicial separation and converting the petition to one
under Section 13(1)(ib) of the Act seeking dissolution of
marriage by way of divorce.
4
4.
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 Rites and customs on 23.11.1994.
After the
marriage the husband and wife stayed together for one and
a half years in the house of the father of the husband but
from
the
very
first
day
the
appellant-wife
was
non-cooperative, arrogant and her behaviour towards the
family members of the husband was unacceptable. Despite
the misunderstanding, a male child was born in the wedlock
and thereafter, the wife took the child and left the house
and chose not to come back to the husband or his family for
a period of three years. It was pleaded that there had been
a marital discord and total non-compatibility, and she had
deserted him severing all ties. It was also alleged that she
had left the tender child in the custody of her parents and
joined a post graduate course in the Medical College of
Gulbarga. All the efforts by the husband to bring her back
became an exercise in futility inasmuch as the letters
written
by
him
were
never
replied.
Despite
the
non-responsive attitude of the wife, he, without abandoning
5
the hope for reconciliation for leading a normal married life,
went to the house of his in-laws, but her parents ill treated
him by forcibly throwing him out of the house.
5.
It was the assertion of the husband that after she
completed her course, she started staying with her parents
along with the child at Bangalore and neither he nor his
family
members
were
ceremony of the child.
invited
for
the
naming
giving
As set forth, the conduct of the wife
caused immense mental hurt and trauma, and he suffered
unbearable mental agony when the family members of his
wife abused and ill treated him while he had gone to pacify
her and bring her back to the matrimonial home. All his
solicitations and beseechments through letters to have
normalcy went in vain which compelled him to issue a
notice through his counsel but she chose not to respond to
the same. Under these circumstances, the petition was filed
for judicial separation and thereafter, as has been stated
earlier, prayer was amended seeking dissolution of marriage
on the ground of desertion since she had deliberately
withdrawn from his society.
6
6.
The wife filed objections contending, inter alia, that
when she was residing in the matrimonial home, the sister
and brother-in-law of the husband, who stayed in the
opposite house, were frequent visitors and their interference
affected the normal stream of life of the couple.
They
influenced the husband that he should not allow his wife to
prosecute her studies and be kept at home as an unpaid
servant of the house. The husband, as pleaded, was torn in
conflict as he could not treat the wife in the manner by his
sister and brother-in-law had desired and also could not
openly express disagreement. At that juncture, as she was
in the family way, as per the customs, she came to her
parental home and by the time the child was born the sister
and brother-in-law had been successful in poisoning the
mind of the husband as a result of which neither he nor his
relatives, though properly invited, did not turn up for the
naming ceremony.
All her attempts to come back to the
matrimonial home did not produce any result since the
husband was acting under the ill-advice of his sister and
brother-in-law.
It was put forth 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 nor was he summarily thrown out of the
house of her parents.
7.
Be it stated, the wife in the same petition filed an
application under Section 9 of the Act for restitution of
conjugal rights to which an objection was filed by the
husband stating, inter alia, that no case had been made out
for restitution of conjugal rights but, on the contrary,
vexatious allegations had been made. It was further averred
that the wife had deserted him for more than five years and
she had been harassing him constantly and consistently.
8.
wife
In support of their respective pleas the husband and
filed
evidence
by
way
of
affidavit
and
were
cross-examined at length by the other side. On behalf of the
husband 12 documents were exhibited as Exts. P-1 to P-12
and the wife examined one witness and exhibited four
documents, Exts. R-1 to R-4.
9.
The family court formulated the following points for
consideration: -
8
“(1) Whether
the
petitioner
proves
that
respondent assaulted him for a continuous
period of not less than 2 years immediately
proceeding the presentation of the petition?
(2) (3) Whether the petitioner is entitled for decree
of divorce as prayed for?
(4) Whether the respondent is entitled for
decree of restitution of conjugal right as
prayed for?
(5)
10.
Whether the respondent proves that the
petitioner
without
reasonable
excuse
withdrawn from the society?
What order?”
The learned Principal Judge of the family court,
appreciating the oral and documentary evidence on record
came to hold that the material on record gave an impression
that there was no scuffle between the husband and the wife;
that even after the birth of the child the husband and his
family members used to visit the wife at her parental home
to see the child; that there was no material on record to
show that when he went to his in-laws house to see the
child, he was ill-treated in any manner; that after the child
was born he had taken the child along with her for
vaccination and spent sometime; that though the husband
and his relatives were invited for naming ceremony of the
child, they chose not to attend; that the husband was able
to recognize his son from the photograph in Ext. R-2; that
the plea of the husband that he was not allowed to see the
child did not deserve acceptation; that the circumstances
did not establish that wife had any intention to bring the
conjugal relationship to an end but, on the contrary, she
was residing in her parents’ house for delivery and then had
to remain at Gulbarga for prosecuting her higher studies;
that while she was studying at Gulbarga, as is evident from
Ext. R-4, the husband stayed there for two days, i.e.,
27.5.1999 and 28.5.1999; that from the letters vide Exts.
P-3, P-7, P-9 and P-11 nothing was discernible to the effect
that the wife went to Gulbarga for her studies without his
permission and she had deserted him; that the husband
had not disclosed from what date he stopped visiting the
house of the wife’s parents after the birth of the child; that
the letters written by the husband did not reflect the
non-cooperative conduct of the wife; that there was no
sufficient evidence to come to a definite conclusion that the
wife had deserted the husband with an intention to bring
the matrimonial relationship to an end; that assuming there
was desertion yet the same was not for a continuous period
of two years immediately preceding the presentation of the
petition; that the husband only wrote letters after 15.9.1999
and nothing had been brought on record to show what steps
he had taken for resumption of marital ties with the wife if
she had deserted him; that the wife was not allowed to come
back to the matrimonial home because of intervention of his
sister and brother-in-law; that the explanation given by the
wife to her non-response to the letters was that when she
was thinking to reply the petition had already been filed was
acceptable; that as the husband was working at Ambedkar
Medical College in the Department of Biochemistry and wife
had joined in the Department of Pathology which would
show that she was willing to join the husband to lead a
normal marital life; and that it was the husband who had
withdrawn from the society of the wife without any
reasonable cause.
Being of this view, the learned Family
Judge dismissed the application for divorce and allowed the
application of the wife filed under Section 23(a) read with
Section 9 of the Act for restitution of conjugal rights.
11.
After the said judgment and decree was passed by
the learned Family Judge, the respondent did not prefer an
appeal immediately. He waited for the wife to join and for
the said purpose he wrote letters to her and as there was no
response, he sent a notice through his counsel. The wife,
eventually, joined on 22.8.2004 at the matrimonial house
being accompanied by her relative who was working in the
Police Department. As the turn of events would uncurtain,
the wife lodged an FIR No. 401/2004 dated 17.10.2004 at
Basaveshwaranagar alleging demand of dowry against the
husband, mother and sister as a consequence of which the
husband was arrested being an accused for the offences
under Section 498A and 506 read with Section 34 of the
Indian Penal Code and also under the provisions of Dowry
Prohibition Act. He remained in custody for a day until he
was enlarged on bail. His parents were compelled to hide
themselves and moved an application under Section 438 of
the Code of Criminal Procedure and, ultimately, availed the
benefit of said provision. After all these events took place,
the husband preferred an appeal along with application for
condonation of delay before the High Court which formed
the subject-matter of M.F.A. No. 9164/04 (FC). The High
Court condoned the delay, took note of the grounds urged in
12
the memorandum of appeal, appreciated the subsequent
events that reflected the conduct of the wife and opined that
the attitude of the wife confirmed that she never had the
intention of leading a normal married life with the husband
and, in fact, she wanted to stay separately with the
husband and dictate terms which had hurt his feelings.
The High Court further came to the conclusion that the
husband had made efforts to go to Gulbarga on many an
occasion, tried to convince the wife to come back to the
matrimonial home, but all his diligent efforts met with
miserable failure. As the impugned judgment would reflect,
the behaviour of the wife established that she deliberately
stayed away from the marital home and intentionally caused
mental agony by putting the husband and his family to go
through a criminal litigation.
That apart, the High Court
took the long separation into account and, accordingly, set
aside the judgment and decree for restitution of conjugal
rights and passed a decree for dissolution of marriage
between the parties.
13
12.
We have heard Mr. Shanth Kumar V. Mohale,
learned counsel for the appellant and Mr. Balaji Srinivasan,
learned counsel for the respondent.
13.
Assailing the legal sustainability of the judgment of
the High Court, Mr. Shanth Kumar, learned counsel
appearing for the appellant, submitted that when the
petition for divorce was founded solely on the ground of
desertion and a finding was returned by the family court
that the ingredients stipulated under Section 13(1)(ib) of the
Act were not satisfied making out a case of desertion on the
part of the wife, the High Court should have concurred with
the same and not proceeded to make out a case for the
respondent-husband on the foundation of mental cruelty. It
is urged by him that the High Court has taken note of
subsequent events into consideration without affording an
opportunity to the appellant to controvert the said material
and that alone makes the decision vulnerable in law.
Learned counsel would submit that the High Court has
erroneously determined the period of communication of
letters and the silence maintained by the wife which is
factually incorrect and, in fact, the concept of desertion, as
14
is understood in law, has not been proven by way of
adequate evidence but, on the contrary, the analysis of
evidence on record by the Family Court goes a long way to
show that there was, in fact, no desertion on the part of the
wife to make out a case for divorce.
It is his further
submission that the High Court has opined that the
marriage between the parties had irretrievably been broken
and, therefore, it was requisite to grant a decree for
dissolution of marriage by divorce which cannot be a ground
for grant of divorce. Learned counsel has placed reliance on
the decisions in Lachman Utamchand Kirpalani v.
Meena @ Mota1, K. Narayanan v. K. Sreedevi2, Mohinder
Singh v. Harbens Kaur3 and Smt. Indira Gangele v.
Shailendra Kumar Gangele4.
14.
Mr. Balaji Srinivasan, learned counsel for the
respondent-husband, has urged that if the petition filed by
the husband is read in entirety, it would be clear that the
husband had clearly pleaded about the mental hurt and
trauma that he had suffered because of the treatment meted
1
AIR 1964 SC 40
AIR 1990 Ker 151
3
AIR 1992 P&H 8
4
AIR 1993 MP 59
2
15
out to him by his wife and her family members. He has
drawn our attention to the evidence to show that for a long
seven and a half years despite the best efforts he could not
get marital cooperation from his wife and as the High Court
has accepted the same, the impugned judgment is flawless.
He has highlighted about the non-responsive proclivity of
the wife when she chose not to reply to the letters of the
husband beseeching her to join his company while she was
staying at Gulbarga. He has also drawn our attention to the
cross-examination of the husband where he has deposed
that after the delivery of the son on 12.1.1998 when she was
discharged, he and his mother had gone to bring the wife
and the child to their home but she went to her parental
home and further neither he nor his family members were
invited for the naming ceremony which was performed in
October, 1998. Learned counsel has drawn our attention to
the subsequent events which have been brought on record
by way of affidavit as well as the rejoinder filed by the
appellant-wife to the counter affidavit to highlight the
subsequent conduct for the purpose of demonstrating the
cruel treatment of the wife. It is canvassed by him that the
16
subsequent events can be taken note of for the purpose of
mental cruelty by this Court and the decree of divorce
granted by the High Court should not be disturbed.
15.
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 and that of the High 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
17
desertion, this Court in Savitri Pandey v. Prem Chandra
Pandey5 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 or disgust without intending
permanently to cease cohabitation, it will not
amount to desertion.
16.
In the said case, reference was also made to
Lachman Utamchand Kirpalani’s case wherein it has
been held that
desertion
in its essence means the
intentional permanent forsaking and abandonment of one
5
(2002) 2 SCC 73
18
spouse by the other without that other’s consent, and
without reasonable cause. 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. For holding desertion as
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.
17.
In the case at hand, the Family Court, on the basis
of the evidence brought on record, has recorded a finding
that there was no desertion for a continuous period of two
years. The High Court has reversed it by emphasizing on
certain aspects of conduct. Analysing the evidence, we are
19
of the considered opinion that it is not established that the
appellant-wife had deserted the husband for a continuous
period of not less than two years immediately preceding the
presentation of the petition. It is because the petition was
presented
in
the
year
2001
and
during
the
cross-examination of the husband it has been admitted by
him that he had gone to Gulbarga in May, 1999 for two
days. The Family Court, on the basis of material brought on
record, has opined that there is no sufficient evidence to
come to a definite conclusion that the wife deserted him
with intention to bring the matrimonial relationship to an
end and further the period of two years was not completed.
The High Court, as it seems to us, has not dealt with this
aspect in an appropriate manner and opined that the wife
had no intention to lead a normal married life with the
husband.
Therefore, the allegation
of desertion,
as
enshrined under Section 13(1)(ib) has not been established.
The finding on that score as recorded by the learned
Principal Judge, Family Court, deserves to be affirmed and
we so do.
20
18.
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.
19.
First we intend to state the subsequent events. As
has been narrated earlier, after the application of the wife
was allowed granting restitution of conjugal rights, the
husband communicated to her to join him, but she chose
not to join him immediately and thereafter went to the
matrimonial home along with a relative who is a police
officer.
After she stayed for a brief period at the
matrimonial home, she left her husband and thereafter
lodged FIR No. 401/2004 on 17.10.2004 for the offences
under Sections 498A and 506/34 of the Indian Penal Code
and the provisions under Dowry Prohibition Act, 1961
21
against the husband, his mother and the sister. Because of
the FIR the husband was arrested and remained in custody
for a day. The ladies availed the benefit of anticipatory bail.
The learned trial Magistrate, as we find, recorded a
judgment of acquittal.
Against the judgment of acquittal,
the appellant preferred an appeal before the High Court
after obtaining special leave which was ultimately dismissed
as withdrawn since in the meantime the State had preferred
an appeal before the Court of Session. At this juncture, we
make it absolutely clear that we will not advert to the legal
tenability of the judgment of acquittal as the appeal, as we
have been apprised, is sub-judice. However, we take note of
certain aspects which have been taken note of by the High
Court and also brought on record for a different purpose.
20.
The seminal question that has to be addressed is
whether under these circumstances the decree for divorce
granted by the High Court should be interfered with. We
must immediately state that the High Court has referred to
certain grounds stated in the memorandum of appeal and
taken note of certain subsequent facts.
We accept the
submission of the learned counsel for the appellant that the
22
grounds stated in the memorandum of appeal which were
not established by way of evidence could not have been
pressed into service or taken aid of. But, it needs no special
emphasis to state that the subsequent conduct of the wife
can be taken into consideration.
It settled in law that
subsequent facts under certain circumstances can be taken
into consideration.
21.
In A. Jayachandra v. Aneel Kaur6 it has been
held thus: -
“If acts subsequent to the filing of the divorce
petition can be looked into to infer
condonation
of
the
aberrations,
acts
subsequent to the filing of the petition can be
taken note of to show a pattern in the
behaviour and conduct.”
22.
In Suman Kapur v. Sudhir Kapur7 this Court had
accepted what the High Court had taken note of despite the
fact that it was a subsequent event.
It is necessary to
reproduce the necessary paragraphs from the said decision
to perceive the approach of this Court: -
“46. The High Court further noted that the
appellant wife sent a notice through her advocate
to the respondent husband during the pendency
of mediation proceedings in the High Court
6
7
(2005) 2 SCC 22
(2009) 1 SCC 422
23
wherein she alleged that the respondent was
having another wife in USA whose identity was
concealed. This was based on the fact that in his
income tax return, the husband mentioned the
social security number of his wife as
476-15-6010, a number which did not belong to
the appellant wife, but to some American lady
(Sarah Awegtalewis).
47. The High Court, however, recorded a finding
of fact accepting the explanation of the husband
that there was merely a typographical error in
giving social security number allotted to the
appellant which was 476-15-6030. According to
the High Court, taking undue advantage of the
error in social security number, the appellant
wife had gone to the extent of making serious
allegation that the respondent had married an
American woman whose social security number
was wrongly typed in the income tax return of the
respondent husband.”
23.
From the acceptance of the reasons of the High
Court by this Court, it is quite clear that subsequent events
which are established on the basis of non-disputed material
brought on record can be taken into consideration. Having
held that, the question would be whether a decree for
divorce on the ground of mental cruelty can be granted. We
have already opined that the ground of desertion has not
been proved. Having not accepted the ground of desertion,
the two issues that remain for consideration whether the
issue of mental cruelty deserves to be accepted in the
24
obtaining factual matrix in the absence of a prayer in the
relief clause, and further whether the situation has become
such that it can be held that under the existing factual
scenario it would not be proper to keep the marriage ties
alive.
Learned counsel for the appellant has urged with
vehemence that when dissolution of marriage was sought on
the ground of desertion alone, the issue of mental cruelty
can neither be raised nor can be addressed to.
Regard
being had to the said submission, we are constrained to
pose the question whether in a case of the present nature
we should require the respondent-husband to amend the
petition and direct the learned Family Judge to consider the
issue of mental cruelty or we should ignore the fetter of
technicality and consider the pleadings and evidence
brought on record as well as the subsequent facts which are
incontrovertible so that the lis is put to rest.
In our
considered opinion the issue of mental cruelty should be
addressed to by this Court for the sake of doing complete
justice. We think, it is the bounden duty of this Court to do
so and not to leave the parties to fight the battle afresh after
expiry of thirteen years of litigation. Dealing with the plea of
25
mental cruelty which is perceptible from the material on
record would not affect any substantive right of the
appellant.
aspect.
It would be only condoning a minor technical
Administration of justice provokes our judicial
conscience that it is a fit case where the plentitude of power
conferred on this Court under Article 142 deserves to be
invoked,
more
so,
when
the
ground
is
statutorily
permissible. By such exercise we are certain that it would
neither be supplanting the substantive law nor would it be
building a structure which does not exist.
It would be
logical to do so and illogical to refrain from doing so.
24.
Before we proceed to deal with the issue of mental
cruelty, it is appropriate to state how the said concept has
been viewed by this Court.
In Vinit Saxena v. Pankaj
Pandit8, while dealing with the issue of mental cruelty, the
Court held as follows: -
“31. It is settled by a catena of decisions that
mental cruelty can cause even more serious
injury than the physical harm and create in
the mind of the injured appellant such
apprehension as is contemplated in the
section. It is to be determined on whole facts of
the case and the matrimonial relations
8
(2006) 3 SCC 778
26
between the spouses. To amount to cruelty,
there must be such wilful treatment of the
party which caused suffering in body or mind
either as an actual fact or by way of
apprehension in such a manner as to render
the continued living together of spouses
harmful or injurious having regard to the
circumstances of the case.
Xxx
xxx
xxx
35. Each case depends on its own facts and
must be judged on these facts. The concept of
cruelty has varied from time to time, from
place to place and from individual to individual
in its application according to social status of
the persons involved and their economic
conditions and other matters. The question
whether the act complained of was a cruel act
is to be determined from the whole facts and
the matrimonial relations between the parties.
In this connection, the culture, temperament
and status in life and many other things are
the factors which have to be considered.”
25.
In Samar Ghosh v. Jaya Ghosh9, this Court has
given certain illustrative examples wherefrom inference of
mental cruelty can be drawn. The Court itself has observed
that they are illustrative and not exhaustive. We think it
appropriate to reproduce some of the illustrations: -
“(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.
9
(2007) 4 SCC 511
27
(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.
xxx
xxx
xxx
(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.
xxx
xxx
xxx
(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.
xxx
xxx
xxx
(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.
xxx
xxx
xxx
(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a fiction
though supported by a legal tie. By refusing to
sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary,
it shows scant regard for the feelings and
28
emotions of the parties. In such like situations,
it may lead to mental cruelty.”
26.
In the said case the Court has also observed thus: -
“99. ... The human mind is extremely complex
and human behaviour is equally complicated.
Similarly human ingenuity has no bound,
therefore, to assimilate the entire human
behaviour in one definition is almost
impossible. What is cruelty in one case may
not amount to cruelty in the other case. The
concept of cruelty differs from person to
person depending upon his upbringing, level of
sensitivity, educational, family and cultural
background, financial position, social status,
customs, traditions, religious beliefs, human
values and their value system.
100. 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 straitjacket formula or
fixed parameters for determining mental
cruelty in matrimonial matters. The prudent
and appropriate way to adjudicate the case
would be to evaluate it on its peculiar facts
and circumstances....”
27.
In Vishwanath Agrawal, s/o Sitaram Agrawal v.
Sarla Vishwanath Agrawal10, while dealing with mental
cruelty, it has been opined thus: -
“22. The expression “cruelty” has an inseparable
nexus with human conduct or human behaviour.
10
(2012) 7 SCC 288
29
It is always dependent upon the social strata or
the milieu to which the parties belong, their ways
of life, relationship, temperaments and emotions
that have been conditioned by their social
status.”
28.
In the said case, analyzing the subsequent events
and the conduct of the wife, who was responsible for
publication in a newspaper certain humiliating aspects
about the husband, the Court held as follows: -
“In our considered opinion, a normal reasonable
man is bound to feel the sting and the pungency.
The conduct and circumstances make it
graphically clear that the respondent wife had
really humiliated him and caused mental cruelty.
Her conduct clearly exposits that it has resulted
in causing agony and anguish in the mind of the
husband. She had publicised in the newspapers
that he was a womaniser and a drunkard. She
had made wild allegations about his character.
She had made an effort to prosecute him in
criminal litigations which she had failed to prove.
The feeling of deep anguish, disappointment,
agony and frustration of the husband is obvious.”
29.
In U. Sree v. U. Srinivas11, the Court, taking note
of the deposition of the husband that the wife had
consistently ill treated him inasmuch as she had shown her
immense dislike towards his “sadhna” in music and had
exhibited total indifference to him, observed as follows: -
“It has graphically been demonstrated that she
had not shown the slightest concern for the
11
(2013) 2 SCC 114
30
public image of her husband on many an
occasion by putting him in a situation of
embarrassment leading to humiliation. She has
made wild allegations about the conspiracy in the
family of her husband to get him remarried for
the greed of dowry and there is no iota of
evidence on record to substantiate the same.
This, in fact, is an aspersion not only on the
character of the husband but also a maladroit
effort to malign the reputation of the family.”
30.
In K. Srinivas Rao v. D.A. Deepa12, while dealing
with the instances of mental cruelty, the court opined that
to the illustrations given in the case of Samar Ghosh
certain other illustrations could be added.
We think it
seemly to reproduce the observations: -
“Making
unfounded
indecent
defamatory
allegations against the spouse or his or her
relatives in the pleadings, filing of complaints or
issuing notices or news items which may have
adverse impact on the business prospect or the
job of the spouse and filing repeated false
complaints and cases in the court against the
spouse would, in the facts of a case, amount to
causing mental cruelty to the other spouse.”
31.
Presently, we shall advert to the material on record.
It is luminous from it that the wife has made allegations
that the sister and brother-in-law of the husband used to
interfere in the day-to-day affairs of the husband and he
was caught in conflict. The said aspect has really not been
12
(2013) 5 SCC 226
31
proven. It has been brought on record that the sister and
brother-in-law are highly educated and nothing has been
suggested to the husband in the cross-examination that he
was pressurized by his sister in any manner whatsoever. It
is her allegation that the sister and brother-in-law of the
husband were pressurizing him not to allow the wife to
prosecute higher studies and to keep her as an unpaid
servant in the house.
evidence
and
the
On a studied evaluation of the
material
brought
on
record
it
is
demonstrable that the wife herself has admitted that the
husband had given his consent for her higher education
and, in fact, assisted her. Thus, the aforesaid allegation has
not been proven.
The allegation that the husband was
instigated to keep her at home as an unpaid servant is quite
a disturbing allegation when viewed from the spectrum of
gender sensitivity and any sensitive person would be hurt
when his behavior has remotely not reflected that attitude.
The second aspect which has surfaced from the evidence is
that the wife had gone to the parental home for delivery and
therefrom she went to the hospital where she gave birth to a
male child.
However, as the evidence would show, the
32
husband despite all his co-operation as a father, when had
gone to the hospital to bring the wife and child to his house,
she along with the child had gone to her parental house.
This aspect of the evidence has gone totally unchallenged.
Perceived from a social point of view, it reflects the
egocentric attitude of the wife and her non-concern how
such an act is likely to hurt the father of the child. The next
thing that has come in evidence is that the respondent was
not invited at the time of naming ceremony.
He has
categorically disputed the suggestion that he and his family
members were invited to the ceremony. It is interesting to
note that a suggestion has been given that they did not
attend the ceremony as in the invitation card the names of
the parents of the husband had not been printed. It has
been asserted by the husband that the said incident had
caused him tremendous mental pain. View from a different
angle, it tantamounts to totally ignoring the family of the
husband.
32.
Another incident deserves to be noted.
The wife
went to Gulbarga to join her studies and the husband was
not aware of it and only come to know when one professor
33
told about it. Thereafter he went to Gulbarga and stayed in
a hotel and met the wife in the hostel on both the days.
Despite his request to come to the house she showed
disinclination. When he enquired about the child, he was
told that the child was in her mother’s house. These are the
incidents which are antecedent to the filing of the petition.
33.
We have already stated the legal position that
subsequent events can be taken note of. After the judgment
and decree was passed by the learned Family Judge, the
husband sent a notice through his counsel dated 14.7.2004
and intimated her as follows: -
“According to the operative portion of the order,
my client has to welcome you to join him with the
child within three months which please note.
My client’s address is Dr. B.V. Ravi, M.D.,
residing in No. 428. 2nd Across, 6th Main, 3rd
Stage,
3rd
Block,
Basaveshwaranagar,
Bangalore-79 and his Telephone No. 23229865.
In obedience to the Hon’ble Court order, you
called upon to join Dr. B.V. Ravi to the above said
address any day after 18th of July, 2004, as this
period upto 17th is inauspicious because of
“Ashada”.”
34
34.
As it appears, she did not join and the husband was
compelled to send a telegram. Thereafter, on 13.8.2004 a
reply was sent on her behalf that she would be joining after
15.8.2004 but the exact date was not intimated. Thereafter,
on 14.8.2004 a reply was sent to the legal notice dated
14.7.2004 sent by the husband.
It is appropriate to
reproduce the relevant two paragraphs: -
“In this context, we hereby inform you that our
client will be coming to join your client in the
above said address along with the child on
Sunday the 22nd August 2004 as the auspicious
NIJASHRAVANA MONTH commences from 16 th
August 2004.
Further
our
client
expects
reasonable
amount of care and cordiality from your client’s
side. Please ensure the same.”
35.
The purpose of referring to these communications is
that despite obtaining decree for restitution of conjugal
rights the wife waited till the last day of the expiration of the
period as per the decree to join the husband. There may be
no legal fallacy, but the attitude gets reflected. The reply
also states that there is expectation of reasonable amount of
35
care and cordiality. This reflects both, a sense of doubt and
a hidden threat. As the facts unfurl, the wife stays for two
months and then leaves the matrimonial home and lodges
the first information report against the husband and his
mother and sister for the offences punishable under
Sections 498A, 506/34 of the Indian Penal Code and under
the provisions of Dowry Prohibition Act.
The husband
suffers a day’s custody and the mother and the sister
availed anticipatory bail.
36.
The High Court has taken note of all these aspects
and held that the wife has no intention to lead a normal
marital life.
That apart, the High Court has returned a
finding that the marriage has irretrievably been broken
down. Of course, such an observation has been made on
the ground of conduct. This Court in certain cases, namely,
G.V.N. Kameswara Rao v. G. Jabilli13, Parveen Mehta v.
Inderjit
Mehta14,
Vijayakumar
R.
Bhate
v.
Neela
Vijayakumar Bhate15, Durga Prasanna Tripathy v.
Arundhati Tripathy16, Naveen Kohli v. Neelu Kohli17 and
13
(2002) 2 SCC 296
(2002) 5 SCC 706
15
(2003) 6 SCC 334
16
(2005) 7 SCC 353
17
(2006) 4 SCC 558
14
36
Samar Ghosh v. Jaya Ghosh (supra), has invoked the
principle of irretrievably breaking down of marriage.
37.
For the present, we shall restrict our delineation to
the issue whether the aforesaid acts would constitute
mental cruelty. We have already referred to few authorities
to indicate what the concept of mental cruelty means.
Mental cruelty and its effect cannot be stated with
arithmetical exactitude.
It varies from individual to
individual, from society to society and also depends on the
status of the persons. What would be a mental cruelty in
the life of two individuals belonging to particular strata of
the society may not amount to mental cruelty in respect of
another couple belonging to a different stratum of society.
The agonized feeling or for that matter a sense of
disappointment can take place by certain acts causing a
grievous dent at the mental level. The inference has to be
drawn from the attending circumstances.
As we have
enumerated the incidents, we are disposed to think that the
husband has reasons to feel that he has been humiliated,
for allegations have been made against him which are not
correct;
his
relatives
have
been
dragged
into
the
37
matrimonial controversy, the assertions in the written
statement depict him as if he had tacitly conceded to have
harboured notions of gender insensitivity or some kind of
male chauvinism, his parents and he are ignored in the
naming ceremony of the son, and he comes to learn from
others that the wife had gone to Gulbarga to prosecute her
studies. That apart, the communications, after the decree
for restitution of conjugal rights, indicate the attitude of the
wife as if she is playing a game of Chess. The launching of
criminal prosecution can be perceived from the spectrum of
conduct. The learned Magistrate has recorded the judgment
of acquittal. The wife had preferred an appeal before the
High after
Court
obtaining
leave.
After
the
State
Government prefers an appeal in the Court of Session, she
chooses to withdraw the appeal.
But she intends, as the
pleadings would show, that the case should reach the
logical conclusion.
This conduct manifestly shows the
widening of the rift between the parties.
It has only
increased the bitterness. In such a situation, the husband
is likely to lament in every breath and the vibrancy of life
melts to give way to sad story of life.
38
38.
From this kind of attitude and treatment it can be
inferred that the husband has been treated with mental
cruelty and definitely he has faced ignominy being an
Associate Professor in a Government Medical College. When
one enjoys social status working in a Government hospital,
this humiliation affects the reputation. That apart, it can be
well imagined the slight he might be facing.
In fact, the
chain of events might have compelled him to go through the
whole gamut of emotions. It certainly must have hurt his
self-respect and human sensibility. The sanguine concept
of marriage presumably has become illusory and it would
not be inapposite to say that the wife has shown anaemic
emotional disposition to the husband. Therefore, the decree
of divorce granted by the High Court deserves to be affirmed
singularly on the ground of mental cruelty.
39.
Presently, we shall proceed to deal with grant of
maintenance.
Both the appellant and the respondent are
doctors and have their respective jobs. The son is hardly
sixteen years old and definitely would require financial
support for education and other supportive things to lead a
life befitting his social status.
The High Court, while
39
granting a decree for divorce should have adverted to it.
However, we do not think it appropriate to keep anything
alive in this regard between the parties. The controversy is
to be put to rest on this score also. Considering the totality
of circumstances, the status the appellant enjoys and the
strata to which the parties belong, it becomes the bounden
duty of the respondent to provide for maintenance and
education for the son who is sixteen years old.
At this
juncture, we may note that a proceeding was initiated before
the learned Principal Judge, Family Court, Bangalore and in
the said proceeding the learned Principal Judge passed the
following order: -
“Matter is settled before the mediation
centre where in parties have entered into a
memorandum of settlement.
Contents of the Memorandum of Settlement
are admitted by the Parties. Court is satisfied
that the same is voluntary.
As per the terms of settlement para 5 clause
(i) petitioner has deposited Rs.3,00,000/- in the
name of minor child in Karnataka Bank, copy of
fixed deposit receipt and R.D. Account pass book
are filed along with memo. Hence petition is
allowed in terms of settlement.
Memorandum of settlement shall be a part
of the decree.”
40
40.
Learned counsel for the respondent would submit
that the amount has been settled. Though there has been a
settlement of Rs.3,00,000/- yet that was at a different time
and under different circumstances. The present appeal was
pending. The duty of this Court is to see that the young son
born in the wedlock must get acceptable comfort as well as
proper education. It is the duty of the Court also to see that
a minor son should not live in discomfort or should be
deprived of requisite modern education. We are conscious,
the appellant is earning but that does not necessarily mean
that the father should be absolved of his liability. Regard
being had to the social status and strata and the concept of
effective
availing
of
education
we
fix
a
sum
of
Rs.25,00,000/- (twenty five lacs) excluding the amount
already paid towards the maintenance and education of the
son. The said amount shall be deposited by the respondent
within a period of six months before the learned Principal
Judge, Family Court at Bangalore and the amount shall be
kept in a fixed deposit in a nationalized bank in the joint
account of the appellant and the minor son so that she can
draw quarterly interest and expend on her son. After the
41
son attains majority the joint account shall continue and
they would be at liberty to draw the amount for the
education or any urgent need of the son.
41.
With the aforesaid directions, we affirm the decree
for divorce passed by the High Court.
The appeal stands
disposed of accordingly but without any order as to costs.
.....................................................J.
[Sudhansu Jyoti Mukhopadhaya]
.....................................................J.
[Dipak Misra]
New Delhi;
June 30, 2014.
No comments:
Post a Comment