CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5010 OF 2007
Gurbux Singh …. Appellant (s)
Versus
Harminder Kaur …. Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) The appellant, a Principal in ITI College, Sirhali, Amritsar, has approached this Court against the judgment and final order dated 11.05.2007 of the High Court of Punjab & Haryana at Chandigarh in FAO No. 252-M of 2006 whereby the learned single Judge dismissed the appeal filed by him against the judgment and order dated 11.10.2006 of the Additional District Judge (Ad hoc), Amritsar, dismissing the petition filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for a decree of divorce against the respondent- wife, who is working as a Librarian in Government Institute DIET at Verka, Amritsar on the ground of `cruelty’. Both the courts have rejected the claim of the appellant herein on the ground that he has failed to prove `cruelty’ sufficient for grant of a decree of divorce.
The case of the Appellant
2) (a) On 23.11.1997, the appellant got married with the
respondent at Amritsar according to Sikh rites and
customs. Even on the date of marriage, the respondent
had been working as a Librarian in a Government
Institute DIET at Verka, Amristar. From the very
beginning, the respondent expressed her dislike towards
the appellant and his family and gradually started
misbehaving with them. She started exhibiting short-
tempered behaviour and treated the parents of the
appellant with cruelty and disrespect. The father of the
appellant is aged about 80 years and his mother is more
than 75 years. In the month of January 1998, on the first
Lohri festival after their marriage, the respondent being
annoyed with the appellant on a trivial issue, abused his
mother in filthy language in the presence of their relatives
and neighbours causing immense pain to the entire
family. Since then, the respondent started insisting that
she cannot live with the parents of the appellant who are
mental and nuisance in her life and pressed upon the
appellant to have a separate abode from his parents.
(b) On 15.05.1999, a male child was born out of the
wedlock. Even after the birth of the child, there was no
improvement in the behaviour of the respondent. She
always insisted that she being financially independent is
not in need of the appellant and his family.
(c) Just five days before the third birthday of their child
i.e. on 10.05.2002, the respondent, without any justifiable
reason left the matrimonial home leaving the child
unattended and went to her parents house and staying
there since then. The appellant having failed in his efforts
to bring back the respondent to the matrimonial home
and in view of the consistent cruelty filed HMA Case No.
19 of 2003 before the Addl. District Judge, Amritsar,
praying for a decree of divorce under Section 13 of the Act.
The stand of the Respondent
3) In reply to the divorce petition, while denying all the
averments made by the appellant, the respondent has
stated that the appellant is a greedy person and not
satisfied with the dowry articles received in marriage. He
always misbehaved and maltreated her and abused on
several occasions. She alleged that the appellant is a
habitual drinker and used to threaten her to kill with
poison. She also alleged that the appellant pulled her hair
and gave merciless beatings in the presence of his
parents.
Decision of the District Court and High Court
4) By judgment dated 11.10.2006, the Additional District
Judge, Amritsar, after analyzing the plea of both the
parties, oral and documentary evidence concluded that
the appellant-husband failed to substantiate the
allegations of `cruelty’ and dismissed his divorce petition.
Aggrieved by the same, the appellant approached the High
Court by filing FAO No. 252-M of 2006. The learned single
Judge of the High Court, by the impugned order dated
11.05.2007, while agreeing with the conclusion of the
Additional District Judge dismissed the appeal filed by
the appellant. Questioning the above said orders, the
appellant has filed the present appeal by way of special
leave petition.
5) Heard Mr. Vinay Kumar Garg, learned counsel for the
appellant and Mr. Seeraj Bagga, learned counsel for the
respondent.
6) The only question for consideration in this appeal is
whether the appellant-husband has made out a case for
divorce on the ground of `cruelty’ by the respondent-wife.
7) Section 13 of the Act specifies the grounds on which a
decree for divorce may be obtained by either party to the
marriage. Though in the divorce petition filed before the
Additional District Judge, Amritsar in HMA No. 19 of
2003, the appellant had sought divorce merely mentioning
Section 13 of the Act for dissolution of marriage by decree
of divorce, and did not specify the grounds on which he is
entitled to decree of divorce. In the petition, the appellant
has highlighted only one aspect, namely, that after the
marriage, in the month of January 1998, on first festival
of Lohri, when they were enjoying the festival, the
respondent-wife abused his mother and the father in the
presence of relatives and neighbours. In para 6 of the
petition, the appellant has alleged that:
"…..She called nuisance, idiot and mental to the parents of
the petitioner and the respondent openly said that she did
not want to live with the petitioner if he live with his old
parents."
In para 10, the appellant has stated:
"That on 10th May of 2002, the respondent left her
matrimonial home without giving any information to any
member and she also left her child in the matrimonial home
this shows that the respondent did not have any love and
affections towards petitioner and his family members. She is
living in her parental house for the last more than one year.
Hence, the necessity has been arisen to file the present
petition….."
Except the above allegations, the appellant has not
highlighted any other instance(s) about cruelty by the
respondent. Though learned counsel for the appellant
attempted to argue "desertion", in the absence of any
plea/evidence and material, we disallowed him to pursue
the said point.
8) In the reply to the petition under Section 13 of the Act,
the respondent has highlighted her stand and in fact
denied all the allegations against her. She also projected
her case that the custody of the child was forcibly taken
by the appellant when she returned from her matrimonial
home. She also highlighted that the appellant used to
force her to bring cash from her parents as he wanted to
purchase a car in the month of February 2000. When she
refused to bring cash, she was mercilessly beaten by the
appellant. She also stated that in February 4, 2000, her
parents gave Rs. 50,000/- to the appellant and thereafter
the appellant agreed to keep the respondent in her
matrimonial home. She also alleged that the appellant is
habitual of taking liquor and under influence of liquor, he
used to beat her. She further alleged that the appellant’s
maternal uncle’s daughter used to interfere in their family
affairs.
9) Apart from the above pleadings, both parties filed
statement in the form of an affidavit/petition and also let
in evidence reiterating their respective pleas. As
discussed earlier, the only instance highlighted by the
appellant for divorce was that the respondent-wife abused
his parents on the day of festival of Lohri in the presence
of relatives and neighbours.
10) In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511,
a three-Judge Bench of this Court while considering
Section 13(1)(i-a) of the Act laid down certain guidelines.
The analysis and ultimate conclusion are relevant which
reads as under:-
"98. 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.
99. 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.
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 while taking aforementioned factors
in consideration.
101. 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
sterilisation without medical reasons and without the
consent or knowledge of his wife and similarly, if the wife
undergoes vasectomy or abortion without medical reason or
without the consent or knowledge of her husband, such an
act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction
though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like situations,
it may lead to mental cruelty."
11) A Hindu marriage solemnized under the Act can only
be dissolved on any of the grounds specified therein. We
have already pointed out that in the petition for
dissolution of marriage, the appellant has merely
mentioned Section 13 of the Act and in the body of the
petition he highlighted certain instances amounting to
cruelty by the respondent-wife. Cruelty has not been
defined under the Act. It is quite possible that a
particular conduct may amount to cruelty in one case but
the same conduct necessarily may not amount to cruelty
due to change of various factors, in different set of
circumstances. Therefore, it is essential for the appellant,
who claims relief, to prove that a particular/part of
conduct or behaviour resulted in cruelty to him. No prior
assumptions can be made in such matters. Meaning
thereby that it cannot be assumed that a particular
conduct will, under all circumstances, amount to cruelty,
vis-`-vis the other party. The aggrieved party has to make
a specific case that the conduct of which exception is
taken amounts to cruelty. It is true that even a single act
of violence which is of grievous and inexcusable nature
satisfies the test of cruelty. Persistence in inordinate
sexual demands or malpractices by either spouse can be
cruelty if it injures the other spouse. There is no such
complaint by the appellant. In the case on hand, as stated
earlier, the appellant has projected few instances in
which, according to him, the respondent abused his
parents. We have verified all the averments in the
petitions, reply statement, written submissions as well as
the evidence of both parties. We are satisfied that on the
basis of such instances, marriage cannot be dissolved.
12) The married life should be assessed as a whole and a
few isolated instances over certain period will not amount
to cruelty. The ill-conduct must be precedent for a fairly
lengthy period where the relationship has deteriorated to
an extent that because of the acts and behaviour of a
spouse, one party finds it extremely difficult to live with
the other party no longer may amount to mental cruelty.
Making certain statements on the spur of the moment and
expressing certain displeasure about the behaviour of
elders may not be characterized as cruelty. Mere trivial
irritations, quarrels, normal wear and tear of married life
which happens in day to day life in all families would not
be adequate for grant of divorce on the ground of cruelty.
Sustained unjustifiable and reprehensible conduct
affecting physical and mental health of the other spouse
may lead to mental cruelty. Both the appellant and
respondent being highly qualified persons, the appellant
being Principal in ITI College, the respondent working as a
Librarian in a Government Institute, an isolated friction
on some occasion like festival of Lohri even in the presence
of others cannot be a valid ground for dissolving the
marriage.
13) Learned counsel appearing for the appellant by
drawing our attention to certain allegations made by the
respondent-wife in the reply to the petition under Section
13 of the Act before the Addl. District Judge submitted
that by considering all these aspects it is just and
reasonable to consider and grant divorce on the ground of
cruelty. In support of the same, he relied on the decision
of this Court in Vijaykumar Ramchandra Bhate vs.
Neela Vijaykumar Bhate, (2003) 6 SCC 334. No doubt,
in that decision, this Court has held that allegations made
in the written statement or suggested in the course of
examination and by way of cross-examination satisfying
the requirement of law has also to be taken note of while
considering the claim of either party. In the case on hand,
it is true that the respondent-wife has made certain
allegations against her husband-appellant. However,
admittedly based on the same, the trial Court has not
framed any issue and no evidence let in in support of the
same. In such circumstances, the said decision is not
helpful to our case. Admittedly, no such issue was framed
by the trial Court or any point determined by the High
Court based on such averments in the reply/written
statement. Accordingly, we reject the said contention.
14) As regards the allegations about beating her child
and not feeding him, the High Court, after analyzing the
entire materials, disbelieved the same. It is also brought
to our notice that the appellant condoned the alleged act
of cruelty as he wanted to bring back the respondent to
his house. As such, the allegations of cruelty do not
appear to be truthful. It is also proved that the appellant
is not interested to keep the respondent as his wife and he
wants divorce by any means. As observed earlier, except
the grounds enumerated in Section 13, a Hindu marriage
solemnized under the Act cannot be dissolved on any other grounds.
15) Finally, a feeble argument was made that both the
appellant and respondent were living separately from 2002
and it would be impossible for their re-union, hence this
Court exercising its jurisdiction under Article 142 of the
Constitution their marriage may be dissolved in the
interest of both parties. Though, on a rare occasion, this
Court has granted the extraordinary relief de hors to the
grounds mentioned in Section 13 in view of the fact that
the issue has been referred to a larger Bench about
permissibility of such course at present, we are not
inclined to accede to the request of the appellant. If there
is any change of law or additional ground included in
Section 13 by the act of Parliament, the appellant is free to
avail the same at the appropriate time.
16) In the light of the above discussion, we are unable to
accept the claim of the appellant, on the other hand, we
are in entire agreement with the conclusion arrived at by
the Addl. District Judge as well as the High Court.
Consequently, the appeal fails and the same is dismissed
with no order as to costs.
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
OCTOBER 8, 2010.
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