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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5387 OF 2007
MANISHA TYAGI .....APPELLANT
VERSUS
DEEPAK KUMAR ...RESPONDENT
JUDGMENT
SURINDER SINGH NIJJAR, J.
1. In this appeal the wife has challenged the judgment of High Court
of Punjab and Haryana in LPA No.1625/01 dated 25.8.2006 whereby the
High Court set aside the judgment of the Trial Court and the Judgment
of Ld. Single Judge and granted a decree of divorce to the husband.
2. Marriage between the parties was celebrated according to Hindu
rites at New Delhi on 17.11.1991. For a short period after the marriage,
the couple stayed at Meerut where the husband was posted as a Captain
in the Indian Army. Mutual cohabitation of the parties seems to have
come to an end on 30.12.1992. They have been living separately since
31.12.1992. They have a daughter who was born on 2.6.1993.
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3. On 24.11.1993 the husband filed a petition under Section 13 of
the Hindu Marriage Act being Matrimonial Case No.644 of 1993 for
dissolution of the marriage. Later on the petition was amended and filed
in the Court of District Judge of Gurgaon on 28.11.1995 pursuant to the
order issued by this Court in a transfer petition.
4. The husband has mentioned numerous instances of cruelty in
paragraph 7 of the divorce petition. He has described the wife as
quarrelsome, rude and ill-mannered. He had gone to the extent of
terming his wife to be schizophrenic, making his life a living hell. He
goes on to narrate that all efforts at conciliation even by his parents did
not yield any result. He then proceeds to state that his wife is misusing
her position as a practising advocate. According to him she has been
constantly threatening him as well as his family that since she and her
two uncles are advocates they would make the lives of the husband and
his family miserable. The husband then complains that the wife has
been making baseless complaints to his superiors. This has affected his
career prospects in the Army. He makes a special reference to a
statutory complaint dated 10.12.1993 in which according to him the wife
had made numerous false allegations about the behaviour of the
husband and his family even prior to the marriage ceremony.
5. We may notice here the contents of the statutory complaint. She
complained about the exorbitant demands made by the husband's family
for dowry. She complained that within days of the marriage the husband
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started behaving in a strange manner; throwing household articles and
clothes all around in the room and also mimicking the sound of different
animals and sometimes barking like a dog. She had also claimed that
she had never seen a human being behaving that way even if very heavily
drunk, as he was most of the times she remained in his company. She
has stated that the husband and in-laws had willfully and cruelly treated
her and had spared no effort to cause her mental harm and inflicted
grave injuries. She also complains that there is danger to her life, limb
and health. They had pressurised her to meet not only their unlawful
demands of money but also for spurious reasons. She ends the
complaint with the comment that she has a child to support. She
requested that an enquiry be held into the conduct of the husband which
is not only rude, indiscreet, disgraceful and unbecoming of an Army
officer but he has committed the offences under the Penal Code.
6. The husband further complains that even during this short period
of cohabitation the behaviour of the wife was erratic, inhuman and
unbearable. In order to cause mental agony to the husband the wife
would deliberately indulge in erratic sexual behaviour. She would
intentionally interrupt the coitus. On many occasions she even refused
to share the bed with him.
7. The husband then makes a grievance that the wife had made a
complaint to the Women Cell, Nanakpura, New Delhi where notice was
received by the husband for appearance on 28.1.1994. She had also
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registered FIR No.10 on 19.1.1994 with Police Station, Keshavpuram,
Delhi under Section 406, 498-A, IPC. The police raided the flat of the
parents of the husband at Noida on 22.1.1994 along with the wife. She
even took away all her belongings including the Maruti car. The
husband in fact goes on further to allege that she even took the
ornaments belonging to the husband and his parents. It is further
alleged that the husband and the parents had to approach the court for
anticipatory bail. She then filed a petition for maintenance before the
Family Court, Meerut. She also lodged an FIR on 18.8.1999 under
Section 354/506/34. She made false allegations against his father,
advocate and the son of the advocate. With these allegations the
husband had gone to court seeking divorce.
8. The Trial Court also took notice of the counter allegations made by
the wife. She claimed that the husband and his family had started
treating her with cruelty when the unwarranted demands for dowry were
not met by her parents. She also claimed that the husband is
deliberately disrupting the marriage as he wants to get married to
someone else. She however admitted that the couple had separated on
31.12.1992. She complains about the deliberate neglect by the husband
of his matrimonial as well as parental duties towards the new born
daughter. She denied all the allegations made by the husband with
regard to her erratic behaviour. She dwells on the illegal demands made
by the in-laws for cash, jeweler and electronic items. She states that the
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marriage was celebrated under shadow of extortion. She was harassed
by the in-laws and rudely informed that they were expecting a sum of
more than 30-lakh rupees to be spent in the marriage as her father was
working abroad. On the very first day when she went to the matrimonial
home she was informed by the mother-in-law that her son was destined
to marry twice as per the horoscope. She reiterates the allegations about
the erratic behaviour of the husband. She states that in his show of
temper he threw household things at her. She was constantly beaten on
one pretext or the other. Denying the allegations with regard to sexual
misbehaviour she stated that in fact the respondent tried to have sexual
intercourse during menstruation period or after conception. She had
asked him to desist from acting in such an unnatural manner but to no
effect. She further admitted having made the complaint but she denied
that these are made as a counter blast to the divorce petition filed by the
husband.
9. On the basis of the pleadings of the parties the Trial Court framed
the following issues:
"1. Whether respondent has been
exercising such cruelty towards the petitioner so
as to entitle the petitioner to the dissolution of
the marriage? OPP
2. Whether the petitioner has been ill-
treating the respondent and as such, cannot
take benefit of his own cruel and tortuous acts,
if so, to what effect? OPR
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3. Whether the petitioner is bad as
premature?
OPP
4. Whether the petition is malafide? OPR
5. Relief."
10. The Trial Court on evaluation of the entire evidence however held
as follows:
"Although the circumstances mentioned
above clearly reveal that it is a case of broken
marriage, however, there is no ground given in
Section 13 of the Hindu Marriage Act, where a
decree of divorce can be founded on the proof of
irretrievably broken marriage. In this regard, I
may cite a recent judgment of our own Hon'ble
High Court reported as Rupinder Kaur Vs. Gurjit
Singh Sandhu (1997-3) P.L.R. 553. It is laid
down in this decision that even if the marriage is
assumed to have (illegible) for irretrievably, it is
not ground to dissolve the marriage.
However, the situation reached between the
parties is of the doing of the petitioner and it is
well cherished principle laid down in Section 11
of the Hindu Marriage Act that a party cannot be
permitted to take benefit of his own wrongs.
For the discussion made above and the
conclusions reached thereon, I hold that the
petitioner has been unsuccessful in proving the
respondent to have treated him with cruelty of
the nature as to entitle him to a decree of
divorce. It is however, proved on the other side
that the petitioner had harassed the respondent
for getting his demand and the demands of his
parents fulfilled. However, the respondent has
prayed for no relief on that ground. Issue No.1
is, therefore, decided against the petitioner while
Issue No.2 is decided in favour of the
respondent."
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11. Aggrieved by the aforesaid findings the respondent filed F.A.O.
No.16-M of 2000 in the Punjab and Haryana High Court. The Learned
Single Judge independently examines the entire evidence and the
material on the record. Upon evaluation of the entire evidence the
Learned Single Judge observed that both the parties are at fault.
According to the Learned Single Judge the wife had crossed "Lakshman
Rekha". Apart from what was stated by the Trial Court, the Learned
Single Judge notices that the wife had not only made allegations about
the unnatural demands of the husband for sexual intercourse when she
was pregnant but she had also made an allegation that he had wanted to
commit the act of sodomy with her which she resisted. The Learned
Single Judge concludes that the evidence led by the husband with regard
to cruelty of the wife is not such that he can be granted a decree of
divorce under Section 13 of the Hindu Marriage Act. At the same time,
adverting to the behaviour of wife the Learned Single Judge observed as
follows:
"I have considered the contentions of the
parties with reference to the documents and first
of all I must say here that respondent had
crossed "Lakshman Rekha". I do not deny that a
woman has no rights after the lawful marriage.
She expects love and affection, financial and
physical security, equal respect and lots more
but at the same time, the wife must remain
within the limits. She should not perform her
acts in such a manner that it may bring
incalculable miseries for the husband and his
family members She should not go to hat extent
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that it may be difficult for her to return from
that point."
12. The final conclusion reached by the Learned Single Judge is as
follows:
"I have made an independent assessment
of the oral evidence and am of the opinion that
both the parties are at fault. The respondent
exceeded the limits of decency when she went to
the extent of lodging a false FIR and when she
tried to humiliate the appellant in the eye of his
superiors by writing a very damaging letter Ex.
PW2/1 without knowing its consequences."
13. In view of the aforesaid conclusions the Learned Single Judge
granted the alternative relief to the husband by passing a decree for
judicial separation under Section 10 of the Hindu Marriage Act. This
decree was passed with the hope that the parties would ponder upon the
situation and may be able to re-unite for the welfare of the child. If, on
the other hand, the parties do not reconcile within the statutory period of
one year it will be open to either of them to seek a decree of divorce.
14. Aggrieved by the aforesaid judgment the wife went in appeal before
the Division Bench in LPA No.1625/01. The Division Bench noticed the
extensive pleadings as well as the evidence led by the parties. On a re-
evaluation of the evidence the Division Bench concluded that all efforts of
reconciliation between parties have failed. They have been living
separately since 31.12.1992. According to the Division Bench the
marriage has irretrievably broken down. The Division Bench sums up
the entire matrimonial scene of the parties in the following words:
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"The allegations and counter allegations
had flown thick and proper in this case. To an
extent these did receive support by the evidence
led by the respective parties. The learned Single
Judge chose a middle-path by holding that both
the parties were at fault and accordingly granted
decree of judicial separation instead of divorce.
To what effect and what difference it has made
to the lives of parties can not really be made out.
The parties are living separately since
31.12.1992. Though not revealed from the
record but we can assume that efforts must
have been made for reconciliation between the
parties at the trial and at the first appellate
stage. Both the parties continue to differ and
have refused to patch up. As noticed earlier, we
also failed in our efforts to bring this
matrimonial dispute to some agreed solution.
What is left of this marriage? Both the parties
though educated but are still standing firm on
their respective stands. They both seem to be
totally unconcerned about their young child and
have continued with their combatant attitude
without any remorse. This marriage, if we may
say, has irretrievably broken down. That of
course cannot be a ground for granting divorce
between this fighting couple. No wonder, the
Hon'ble Supreme Court in a latest decision in
Naveen Kohli vs. Neelu Kohli, 2006 (3) Scale 252
has made a recommendation to the executive to
provide this as a legal ground for divorce. Till
the law is amended, we will remain handicapped
to act even in those cases where one finds that a
marriage just cannot work and existence thereof
is nothing but an agony for both the parties.
We, as such, are required to decide if the
allegations of cruelty made by the respondent
were proved or not."
15. While reappreciating evidence the Division Bench notices the
averments made by the wife in paragraphs 13 and 31 of the Statutory
Complaint dated 10.12.1993 wherein she had stated as follows:
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"13. On 2.12.1991, my husband started
behaving in a strange manner throwing the
household articles and clothes all around in the
room and also mimicking the sound different
animals and some times barking like a dog. I
was not only stunned but also shocked because
I had never seen a human being behaving that
way even if very heavily drunk as he was most of
the time I remained in his company. I was not
allowed to touch any thing which belong to him.
When I told my mother-in-law, she warned me to
ensure that I obeyed all orders given to me,
either my husband or in laws."
"31. My health started deteriorating. My
mind was disturbed to the extreme. Now
another form of torture, unnatural sex. He
would thrust on me at odd hours. I was no
longer a human being but a slave to his wild
passions."
16. It is also observed that the wife has not denied the aforesaid
averments while giving her evidence. She had in fact further elaborated
the allegation of sodomy made by her in the complaint. The conclusion
recorded by the Division Bench is as follows:
"We have given our thoughtful
consideration to the while issue. It cannot be
disputed that the appellant had made the
averments in paras 13 and 31 of the complaints,
which have been reproduced above. She has
also not denied the same, rather while giving her
evidence, she had further elaborated the
allegations of sodomy made by her in the
complaint. Wife cannot deny that she had
compared her husband to a barking dog that
she also made allegations against him for having
behaved in a strange manner. She had also
referred to him as heavy drunkard. Even if we
leave aside the other allegations as made by the
husband, we think that describing husband as
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dog and mimicking as animals and making
allegations of sodomy would be enough to say
that these amounted to cruelty on her part
towards her husband. It cannot be denied that
the wife had lodged various complaints and
criminal proceedings against the respondent-
husband. FIR under sections 498-A and 406
IPC was got registered by the wife. Respondent-
husband, however, earned acquittal in this case.
Another complaint filed before the Police Station
Civil Lines, Meerut ended in dropping of the
proceedings. Yet in another FIR got registered
under Sections 417, 419 and 420 IPC, the
respondent-husband was discharged. The
record also reveals that still another FIR was got
registered under Sections 354 and 506 read with
Section 34 IPC on 18.8.1999 against the father-
in-law, an Advocate and son of an Advocate by
the appellant-wife. We think that this conduct
would exceed all bounds of moderation. A
daughter-in-law making an allegation against
her old and infirm father-in-law for molesting
her would certainly be an intolerable behaviour,
which can be termed nothing but an act of
immense cruelty for a son, who was none else
than the husband of such complaint-wife. This
FIR was quashed on 20.3.2002. Seeing the
cumulative effect of all these allegations, we
would not have any hesitation to hold that the
allegations of cruelty made by the respondent-
husband stand established."
17. Since the allegation of cruelty made by the husband had been
accepted, the Division Bench further observed as follows:
"We would, accordingly, hold that the
finding of the learned Single Judge in grating
partial relief and that of the trial Judge in
declining the relief of divorce cannot be
sustained. We would, accordingly, set aside
both the judgments and hold that the cruelty
alleged by the respondent husband stands
proved. As a result, we will dismiss the appeal
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and modify the judgment of the learned Single
Judge to hold that the decree of divorce prayed
by the respondent-husband is granted."
The aforesaid judgment has been challenged by the wife in the
present appeal.
18. We have heard the counsel for the parties. Ms. Kamini Jaiswal,
appearing for the appellant, submitted that order passed by the High
Court could not have been passed in an appeal filed by the wife. The
husband had not filed any appeal. Both the courts below had given
concurrent findings that that the allegations of the husband about
cruelty of the wife have not been proved. These findings were based on a
thorough evaluation of the evidence by the Trial Court as well as the
learned Single Judge of the High Court. The Division Bench reversed the
findings without any recording any independent reasons. Learned
Counsel made a reference to the observations of the Trial Court wherein
it has been observed that averments made in paragraph 13 would not
amount to calling her husband a dog. The District Judge had observed
"to say that a person started barking like a dog and that that person is a
dog are two different things. In Para 13 of exh. PW2/1, the respondent
only speaks about unhuman behaviour of her husband and she cannot
be taken as addressing her husband as dog in this paragraph".
19. The Trial Court also observed that the allegations made in
paragraph 31 of the Statutory Complaint about unnatural sex cannot be
equated with sodomy. The Trial Court also came to the conclusion that
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it is a case of broken marriage. However, in the absence of a ground
under Section 13 of the Hindu Marriage Act where a decree of divorce
can be founded on the proof of irretrievable broken marriage, it would
not be a ground to dissolve the marriage. It is also pointed out that
these findings were not rejected by the Appellate Court. According to the
learned counsel on this short ground the judgment of the Division Bench
is liable to be set aside.
20. On the other hand, Mr. Rajender Kumar, appearing for the
husband submitted that the High Court possibly could not have granted
the decree on the basis of irretrievable break down of marriage.
However, the High Court has granted the decree of divorce upon re-
appreciation of the evidence and recording an independent finding that
the conduct of the wife amounts to cruelty which would entitle the
husband to a decree of divorce. According to the learned counsel
substantial justice has been done between the parties and the judgment
does not call for any interference. It has also been pointed out by the
learned counsel that, a petition was filed for divorce on the basis of the
decree of judicial separation which had been granted by the learned
Single Judge. However proceedings in the aforesaid case have been kept
in abeyance due to the pendency of the appeals in the High Court and
this Court. Learned counsel submitted that there is absolutely no room
for reconciliation between the parties. Therefore, the judgment of the
High Court need not be reversed at this stage.
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21. We have considered the submissions made by the learned counsel.
The Trial Court as well as the Appellate Court have both concluded that
the behaviour of the husband as well as the wife falls short of the
standard required to establish mental cruelty in terms of Section 13(1)
(i-a).
22. At this stage we may notice the observations made by this Court in
the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this
case the Court examined the development and evolution of the concept of
mental cruelty in matrimonial causes. In paragraph 35 it is observed as
follows:
"35. The petition for divorce was filed
primarily on the ground of cruelty. It may be
pertinent to note that, prior to 1976 amendment
in the Hindu Marriage Act, 1955 cruelly was not
a ground for claiming divorce under the Hindu
Marriage Act. It was only a ground for claiming
judicial separation under Section 10 of the Act.
By the 1976 amendment, cruelty was made a
ground for divorce and the words which have
been omitted from Section 10 are "as to cause a
reasonable apprehension in the mind of the
petitioner that it will be harmful or injurious for
the petitioner to live with the other party".
Therefore, it is not necessary for a party
claiming divorce to prove that the cruel
treatment is of such a nature as to cause an
apprehension-reasonable apprehension - that it
will be harmful or injurious for him or her to live
with the other party."
23. The classic example of the definition of cruelty in the pre-1976 era
is given in the well known decision of this Court in the case of N.G.
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Dastane vs. S. Dastane (1975) 2 SCC 326, wherein it is observed as
follows:
"The enquiry has to be whether the conduct
charged as cruelty is of such a character as to
cause in the mind of the petitioner as reasonable
apprehension that it would be harmful or
injurious for him to live with the respondent".
24. This is no longer the required standard. Now it would be sufficient
to show that the conduct of one of the spouses is so abnormal and below
the accepted norm that the other spouse could not reasonably be
expected to put up with it. The conduct is no longer required to be so
atrociously abominable which would cause a reasonable apprehension
that it would be harmful or injurious to continue the cohabitation with
the other spouse. Therefore to establish cruelty it is not necessary that
physical violence should be used. However continued ill-treatment
cessation of marital intercourse, studied neglect, indifference of one
spouse to the other may lead to an inference of cruelty. However in this
case even with aforesaid standard both the Trial Court and the Appellate
Court had accepted that the conduct of the wife did not amount to
cruelty of such a nature to enable the husband to obtain a decree of
divorce.
25. We may notice here the observations made by this Court in the
case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 wherein
the concept of cruelty has been stated as under:
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"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. It if
it 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 b e denied
on the ground that there has been no deliberate
or willful ill-treatment."
26. In the case of V. Bhagat vs. D. Bhagat (1994) 1 SCC 337, this
Court while examining the concept of mental cruelty observed as follows:
"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
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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."
27. Taking into consideration the conduct of the parties over a period
of time, the Trial Court as well as the Appellate Court concluded that the
husband had failed to establish cruelty on the part of the wife which will
be sufficient to grant a decree of divorce.
28. The Appellate Court further came to the conclusion that since both
the parties made extremely serious allegations, it would be appropriate
as the parties were not compelled to live together. The Appellate Court
came to the conclusion that it would be more appropriate to give the
couple some time to ponder over the issue especially keeping in view the
welfare of their daughter. If in due course they manage to reconcile their
differences the decree of judicial separation would be of no consequence.
On the other hand, if the parties continued with their adamant attitudes
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it would be possible for either party to seek dissolution of the marriage
on the basis of the aforesaid decree of judicial separation.
29. As noticed earlier the husband did not challenge the aforesaid
decree of the Appellate Court, he was content to wait for one year and
there after seeking decree of divorce. In fact upon the expiry of one year
he has actually filed the necessary proceedings seeking decree of divorce
in the Court of District Judge, Gurgaon on 9.5.2002. These proceedings
are still pending.
30. On the other hand the wife had filed the Latest Patent Appeal
challenging the grant of decree of judicial separation to the husband by
the Appellate Court. We are of the opinion that the High Court erred in
granting a decree of divorce to the husband. She had come in appeal
before the Division Bench complaining that the Appellate Court had
wrongly granted the decree of judicial separation even after concurring
with the findings of the Trial Court that the husband had failed to
establish cruelty by the wife. Therefore even if the appeal had been
dismissed, the findings recorded by the Trial Court in her favour would
have remained intact. The effect of the order passed by the Division
Bench is as if an appeal of the husband against the decree of judicial
separation has been allowed. Both the parties had failed to make out a
case of divorce against each other. The husband had accepted these
findings. Therefore he was quite content to wait for the statutory period
to lapse before filing the petition for divorce, which he actually did on
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9.5.2002. On the basis of the proven facts the Trial Court was more
inclined to believe the wife, whereas the learned Single Judge of the High
court found both the parties to be at fault. Hence the middle path of
judicial separation had been accepted. Therefore, it was not a case
where it was necessary for the Division Bench to correct any glaring and
serious errors committed by the court below which had resulted in
miscarriage of justice. In our opinion there was no compelling necessity,
independently placed before the Division Bench to justify reversal, of the
decree of judicial separation. In such circumstances it was wholly
inappropriate for the Division of High Court to have granted a decree of
divorce to the husband.
31. For the aforesaid reasons, we are unable to uphold the judgment
and the decree of the Division Bench. Consequently, we allow the
appeal. We set aside the Judgment and the Order passed by the Division
Bench and restore the Order passed by the learned Single Judge in FAO
No. 16-M of 2000.
32. There shall be no order as to costs.
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