Ghosh’s case (supra), when we examine the
grounds taken by the respondent in his petition for
proving the mental cruelty for grant of divorce
against the appellant, we find that none of the
grounds satisfies either individually or collectively
the test laid down in Samar Ghosh’s case (supra) so
as to entitle the respondent to claim a decree of
divorce.
26) This we hold for more than one reason. First,
almost all the grounds taken by the respondent in
his petition were stale or/and isolated and did not
subsist to enable the respondent to seek a decree
for dissolution of marriage. In other words, the
incidents of cruelty alleged had taken place even,
according to the respondent, immediately after
marriage. They were solitary incidents relating to
the behavior of the appellant. Second, assuming
that one or more grounds constituted an act of
cruelty, yet we find that the acts complained of were
condoned by the parties due to their subsequent
conduct inasmuch as admittedly both lived together
till 2006 and the appellant gave birth to their
second daughter in 2006. Third, most of the
incidents of alleged cruelty pertained to the period
prior to 2006 and some were alleged to have
occurred after 2006. Those pertained to period after
2006 were founded on general allegations with no
details pleaded such as when such incident
occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant
actually said etc.
27) In our view, the incidents which occurred prior
to 2006 could not be relied on to prove the
instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So
far as the instances alleged after 2006 were
concerned, they being isolated instances, did not
constitute an act of cruelty.
28) A petition seeking divorce on some isolated
incidents alleged to have occurred 8-10 years prior
to filing of the date of petition cannot furnish a
subsisting cause of action to seek divorce after 10
years or so of occurrence of such incidents. The
incidents alleged should be of recurring nature or
continuing one and they should be in near
proximity with the filing of the petition.
29) Few isolated incidents of long past and that too
found to have been condoned due to compromising
behavior of the parties cannot constitute an act of
cruelty within the meaning of Section 13 (1)(ia)of the
Act.
30) In our considered opinion, both the Courts
below failed to take note of this material aspect of
the case and thus committed jurisdictional error in
passing a decree for dissolution of marriage.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.7114-7115 OF 2014
Suman Singh
V
Sanjay Singh
Dated:March 08, 2017
Abhay Manohar Sapre, J.
1) These appeals are filed by the appellant (wife)
against the final judgment and order dated
23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O.
No.109 of 2013 by which the High Court dismissed
the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge,
Family Courts, Rohini which had granted decree for
dissolution of marriage in favour of the respondent
(husband) and, in consequence, also affirmed the
order dismissing the petition filed by the appellant
(wife) for restitution of conjugal rights.
2) Facts, in brief, to appreciate the controversy
involved in the appeals need mention infra.
3) The marriage between the appellant and the
respondent was solemnized on 26.02.1999 at Delhi
as per the Hindu rites. The respondent-husband is
working as "Caretaker" in the Government of NCT of
Delhi whereas the appellant is a housewife. Out of
this wedlock, one daughter was born on 15.06.2002
and the second daughter was born on 10.02.2006.
Both daughters are living with the appellant.
4) On 11.07.2010, the respondent (husband) filed
a petition for dissolution of marriage under Section
13 of the Hindu Marriage Act, 1955 (hereinafter
referred to as "The Act”) in the Family Courts,
Rohini, Delhi against the appellant (wife). The
respondent sought decree for dissolution of
marriage essentially on the ground of "cruelty”.
5) In substance, the respondent, in his petition,
pleaded 9 instances which, according to him,
constituted "cruelty” within the meaning of Section
13(1)(i-a) of the Act entitling him to claim
dissolution of marriage against the appellant.
6) The first ground of cruelty was related to wife's
behavior on the next day of marriage, i.e.,
27.02.1999. It was alleged that the appellant came
out of the bedroom in night dress and that too late
when the close relatives of the respondent were
sitting in the house. It was alleged that she did not
pay respect and wishes to the elders. (Para 9 of the
plaint)
7) The second ground of cruelty was again about
the appellant's behavior with the respondent on the
eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed
to celebrate the new year with the appellant on her
parental house as the parents of the appellant gave
repeated calls. After reaching her parental house,
most of the time the appellant was busy with her
family members and left him alone in the drawing
room. Even at the time of dinner, the family
members of the appellant did not behave properly.
(Para 10).
8) The third ground of cruelty was that the
appellant did not show any inclination or
enthusiasm to attend any important family function
or festivals at the respondent’s house whenever
held. However, no details were given about the date
and the function held. The allegations are general
in nature (Para 11).
9) The fourth ground of cruelty was again about
the indecent behavior of the appellant towards the
respondent’s family members. However, no details
were pleaded except making general averments
(Para 12).
10) The fifth ground of cruelty was in relation to
an incident which, according to the respondent,
occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple
should live separately from the respondent's parents
(Para 13).
11) The sixth ground of cruelty was again general
with no details. It was alleged that the appellant
was not interested in doing any household work nor
was interested in preparing meals and used to insist
the respondent to have his lunch from outside.
(Para 14).
12) The seventh ground of cruelty was in relation
to one incident which, according to the respondent,
occurred on Diwali day in the year 2000. It was
again about the behavior of the appellant with the
family members of the respondent which, according
to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to
one isolated incident which, according to the
respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends
of the respondent who had come to the respondent's
house. According to the respondent, the family
members did not like it (Para 17).
14) The ninth ground of cruelty was that one day
in year 2010, the appellant visited the respondent's
office and misbehaved with the respondent in the
presence of other officials (Para 27).
15) The respondent also alleged some instances in
the petition. They, however, again essentially relate
to the appellant’s behaviour with the respondent
and his family members.
16) The appellant filed her written statement and
denied these allegations. The appellant also applied
for restitution of conjugal rights against the
respondent in the same proceedings by filing
petition under Section 9 of the Act and inter alia
alleged in her petition that it was the respondent
who has withdrawn from her company without
there being a reasonable cause. She also while
denying the case set up by the respondent justified
her case for restitution of conjugal rights.
17) The Trial Court framed the following issues on
the basis of pleadings in the case:
1. Whether after solemnization of
marriage, the Respondent has treated the
Petitioner with cruelty? OPP
2. Whether the Petitioner is entitled to
the decree of divorce as prayed? OPP
3. Relief
The following issues were framed based on the
pleadings in the petition under Section 9 of the Act:
1. Whether the Petitioner is entitled to
the restitution of conjugal rights as prayed?
OPP
2. Relief
18) Parties adduced the evidence. By order dated
14.12.2012, the Family Court allowed the petition
filed by the respondent. It was held that the
grounds alleged by the respondent amounted to
mental cruelty within the meaning of Section 13(1)
(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for
dissolution of marriage against the appellant.
Accordingly, the Trial Court granted decree for
dissolution of marriage in favour of the respondent
and dissolved the marriage. Since the decree for
dissolution of marriage was passed against the
appellant, the petition filed by the appellant against
the respondent seeking restitution of conjugal rights
was dismissed.
19) The appellant, felt aggrieved by the aforesaid
order, filed first appeals before the High Court. In
appeals, the question was whether the Trial Court
was justified in granting decree for dissolution of
marriage to the respondent (husband) and, in
consequence, was justified in dismissing the
petition for restitution of conjugal rights filed by the
appellant (wife).
20) By impugned judgment, the High Court
dismissed the appeals and affirmed the
judgment/decree of the Trial Court. The appellant
(wife), felt aggrieved, has filed these appeals by
special leave against the judgment of the High
Court.
21) Heard Mr. D.N. Goburdhan, learned counsel
for the appellant and Mr. Gaurav Goel, learned
counsel for the respondent.
22) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeals and while setting
aside the impugned order, dismiss the divorce
petition filed by the respondent(husband) against
the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of
conjugal rights against the respondent (husband).
23) The word "cruelty” used in Section 13(1)(ia) of
the Act is not defined under the Act. However, this
expression was the subject matter of interpretation
in several cases of this Court. What amounts to
“mental cruelty” was succinctly explained by this
Court (three Judge Bench) in Samar Ghosh vs.
Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships
speaking through Justice Dalveer Bhandari
observed that no uniform standard can ever be laid
down for guidance, yet it is appropriate to
enumerate some instances of human behavior
which may be considered relevant in dealing with
the cases of “mental cruelty”.
24) Their Lordships then broadly enumerated 16
category of cases which are considered relevant
while examining the question as to whether the
facts alleged and proved constitute “mental cruelty”
so as to attract the provisions of Section 13 (1) (ia)
of the Act for granting decree of divorce.
25) Keeping in view the law laid down in Samar
Ghosh’s case (supra), when we examine the
grounds taken by the respondent in his petition for
proving the mental cruelty for grant of divorce
against the appellant, we find that none of the
grounds satisfies either individually or collectively
the test laid down in Samar Ghosh’s case (supra) so
as to entitle the respondent to claim a decree of
divorce.
26) This we hold for more than one reason. First,
almost all the grounds taken by the respondent in
his petition were stale or/and isolated and did not
subsist to enable the respondent to seek a decree
for dissolution of marriage. In other words, the
incidents of cruelty alleged had taken place even,
according to the respondent, immediately after
marriage. They were solitary incidents relating to
the behavior of the appellant. Second, assuming
that one or more grounds constituted an act of
cruelty, yet we find that the acts complained of were
condoned by the parties due to their subsequent
conduct inasmuch as admittedly both lived together
till 2006 and the appellant gave birth to their
second daughter in 2006. Third, most of the
incidents of alleged cruelty pertained to the period
prior to 2006 and some were alleged to have
occurred after 2006. Those pertained to period after
2006 were founded on general allegations with no
details pleaded such as when such incident
occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant
actually said etc.
27) In our view, the incidents which occurred prior
to 2006 could not be relied on to prove the
instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So
far as the instances alleged after 2006 were
concerned, they being isolated instances, did not
constitute an act of cruelty.
28) A petition seeking divorce on some isolated
incidents alleged to have occurred 8-10 years prior
to filing of the date of petition cannot furnish a
subsisting cause of action to seek divorce after 10
years or so of occurrence of such incidents. The
incidents alleged should be of recurring nature or
continuing one and they should be in near
proximity with the filing of the petition.
29) Few isolated incidents of long past and that too
found to have been condoned due to compromising
behavior of the parties cannot constitute an act of
cruelty within the meaning of Section 13 (1)(ia)of the
Act.
30) In our considered opinion, both the Courts
below failed to take note of this material aspect of
the case and thus committed jurisdictional error in
passing a decree for dissolution of marriage.
31) We cannot, therefore, countenance the
approach of the High Court because it did not, in
the first instance, examine the grounds taken in the
petition to find out as to whether such grounds
constitute mental cruelty or not? The finding,
therefore, though concurrent does not bind this
Court.
32) We are not impressed by the submission of the
learned counsel for the respondent that an incident
which occurred somewhere in 2010 when the
appellant visited the office of the respondent and
alleged to have misbehaved with the respondent in
front of other officers would constitute an act of
cruelty on the part of the appellant so as to enable
the respondent to claim divorce. In the first place,
no decree for divorce on one isolated incident can be
passed. Secondly, there could be myriad reasons for
causing such isolated incident. Merely because both
exchanged some verbal conversation in presence of
others would not be enough to constitute an act of
cruelty unless it is further supported by some
incidents of alike nature. It was not so.
33) We are also not impressed by the submission
of the learned counsel for the respondent that since
the appellant had made allegation against the
respondent of his having extra-marital relation and
hence such allegation would also constitute an act
of cruelty on the part of the appellant entitling the
respondent to claim decree for dissolution of
marriage.
34) Similarly, we are also not impressed by the
submission of learned counsel for the respondent
that since both have been living separately for quite
some time and hence this may be considered a good
ground to give divorce.
35) In the first place, the respondent did not seek
a decree of dissolution of marriage on these
grounds. Second, the grounds of cruelty taken by
the respondent in his petition does not include
these grounds. Third, even if some stray allegations
were made by the wife in her pleading/evidence as
were relied upon by the learned counsel are of no
relevance because, as mentioned above, these
ground were not pleaded in the petition by the
respondent for seeking a decree of divorce and nor
were put in issue; and lastly, the burden being on
the respondent, the same could be discharged by
the respondent by pleading and then proving. It was
not so done. It is for these reasons, we cannot
accept the aforementioned two submissions for
affirming the decree of divorce.
36) This takes us to the next question as to
whether the appellant was able to make out any
case for restitution of conjugal rights against the
respondent.
37) Having perused her petition and evidence, we
are of the view that the appellant is entitled for a
decree for restitution of conjugal rights against the
respondent.
38) In our considered view, as it appears to us
from perusal of the evidence that it is the
respondent who withdrew from the appellant's
company without there being any reasonable cause
to do so. Now that we have held on facts that the
respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the
respondent who withdrew from the company of the
appellant without reasonable cause and not the vice
versa.
39) In view of foregoing discussion, the appeals
succeed and are allowed. The impugned judgment is
set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act
seeking dissolution of marriage is dismissed. As a
consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed
by the appellant against the respondent under
Section 9 of the Act seeking restitution of conjugal
right is allowed. A decree for restitution of conjugal
right is, accordingly, passed against the respondent.
40) We hope and trust that the parties would now
realize their duties and obligations against each
other as also would realize their joint obligations as
mother and father towards their grown up
daughters. Both should, therefore, give quite burial
to their past deeds/acts and bitter experiences and
start living together and see that their daughters are
well settled in their respective lives. Such reunion,
we feel, would be in the interest of all family
members in the long run and will bring peace,
harmony and happiness. We find that the
respondent is working as a "Caretaker" in the
Government Department (see Para 4 of his petition).
He must, therefore, be the "Caretaker" of his own
family that being his first obligation and at the same
time attend to his Government duties to maintain
his family.
………...................................J.
[R.K. AGRAWAL]
….……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 08, 2017
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