Patna High Court
Sudhanshu Mauli Tripathi vs Meena Kumari & Anr on 11 September, 2009
Author: S.K.Katriar
Bench: Sudhir Kumar Katriar, Jyoti Saran
MISC. APPEAL No.143 OF 1996
Against the judgment and order dated 29.7.1995
passed by Shri Lakhan Kumar Sahay, Principal
Judge, Family Court, Patna in Matrimonial Case
No. 20 of 1990/141 of 1992
SUDHANSHU MAULI TRIPATHI son of Sri Umakant Tripathi of
Village Dharhara, P.O. Dharhara, Police Station Amnaur,
District Saran.
------------------------ Petitioner-Appellant
Versus
1. MEENA KUMARI Daughter of Parmanand Pandey Resident of Mohalla
Kankerbagh Bank Colony Police Station Kankerbagh, District-
Patna
2. Nandan Dubey son of Shri Dinesh Dubey, C/o- Trishul Shakti
Travels and Tour, Road No.2. Shrikrishna Nagar.(Plot No. 25).
Police Station Budha Colony, District- Patna.
---------------------------- Defendants-Respondents
For the appellant :- 1. Mr. Rajiv Verma, Sr. Adv.
2. Mr. Rajneesh, Adv.
For the Respondent No.1 :- 1. Sri S.N. Roy, Adv.
2. Sri Ajay Kumar, Adv.
P R E S E N T
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
THE HON'BLE MR. JUSTICE JYOTI SARAN
*********
Jyoti Saran,J. This appeal under Section 19 of the Family
Courts Act 1984, is directed against the judgment
and order dated 29.7.1995, passed
in Matrimonial Case No. 20 of 1990/141 of 1992
(Sudhanshu Mauli Tripathi versus
Meena Kumari @ Daijee and Anr. ), by the
2
learned Principal Judge, Family Court,
Patna, dismissing the suit for divorce filed under
Section 13 of the Hindu Marriage Act,
1955(hereinafter referred to as "the Act")
The appeal under Section 19 of the Family
Courts Act lies before this Court and is to be
heard on facts as well as on law. For the sake of
convenience, we shall refer to the position of the
parties as it existed at the stage of the suit.
2) The petitioner, Sudhanshu Mauli
Tripathi, the husband, had filed a petition-cum-
plaint under Section 13 for grant of a decree of
divorce-cum-annulment of marriage from the
defendant No.1, Meena Kumari. The case of the
petitioner as set out in the plaint is that his
parents were looking for an educated girl having
atleast a Graduate qualification for his marriage.
It is stated that the parents and relatives of the
defendant misrepresented by impressing upon his
family that the defendant was a graduate and
obtained consent of marriage by fraud and
deception. The marriage was solemnized on
22.4.1984, as per Hindu religious rites at the
residence of the defendant at Kankarbagh, Patna.
2.1) It is further stated that within two
months of the marriage, the defendant started
presenting unwarranted conduct and misbehavior
with the petitioner and his parents and also using
3
disgraceful language. Defendant No.1 was having
very affable relationship with defendant No.2,
Nandan Dubey. When he made a surprise visit to his
residence during working hours on 15.5.1984, he
found them in a highly objectionable position and
he asked defendant No. 2, Nandan Dubey to leave
the place immediately and also tried to reason out
with defendant No.1 but she began to quarrel.
The petitioner contended that the behaviour of
defendant No. 1, towards defendant No.2 indicated
that they were in illicit relationship. It is
further stated that defendant No.1 continuously
misbehaved with his parents.
2.2) It was also stated that on 26.6.1984,
when the petitioner returned from office, he was
told that defendant No.1 had left for her Naihar
along with her belongings and when the petitioner
went to her house, he was chastised by her parents
for not allowing her freedom to meet her friends
and relatives. In between 1985 to 1988, the
petitioner made several visits to the parental
house of defendant No.1 in order to pacify her and
get her back, but the same did not bear any
fruitful result. It is further stated that in the
year 1987, on the day of Dushehra, when the
petitioner went to meet defendant No.1, he found
the defendants in compromising position. The
petitioner made complaint before the parents of
4
defendant No.1, but they did not take any action
rather abused him and asked him to leave the
house. It is further stated in the plaint that on
4.3.1990, defendant No.1 was roaming with an
unknown person in New Market, Patna, and upon
seeing him, she became furious and tried to
assault him with her Chappal but he managed to
escape.
2.3) It is further stated that a number of
cases were instituted against him at the behest of
defendant No.1 and her family members namely:-
(I) Patliputra P.S. Case No. 218 of
1991 dated 31.10.1991 under Section
498 A, 384 of the Indian Penal
Code.
(II) Patliputra P.S. Case No. 118
of 1992 dated 16.2.1992 under
Sections 307, 377, 338 and 279 of
the Indian Penal Code.
(III) Case No. 510 of 1992 in the
Court of S.D.O. Patna Sadar under
Section 107 Cr.P.C.
(IV) Sanha No. 824 dated 29.8.1990
at Kaji Mohammadpur P.S. District
Muzaffarpur.
(V) Complaint petition to the
D.I.G. Mahilakosang, Patna.
The petitioner thus contains that he has
5
been subjected to severe acts of cruelty at the
hands of defendant No.1 who has deserted him. The
petitioner also charges defendant No.1 of adultery.
2.4) In the circumstances stated above,
prayer was made to dissolve the marriage by a
decree of divorce.
3) The petitioner filed two amendment
applications in the proceeding, first one on
26.7.1993, and the second one was filed on
21.9.1993, whereby the details of the criminal
cases filed by defendant no. 1 and submissions to
that effect were brought on record.
4) The defendants appeared in the
proceeding and filed separate set of written
statements. Defendant no.1 denied any intimation
about the matrimonial suit and stated that she
gathered such information from newspaper reports.
She has also contended that the entire suit was
based on falsity. She denied misrepresentation
regarding her educational qualification. She
further denied using foul language against the
petitioner or his parents. She also denied the
charge of her alleged illicit relationship with
defendant No.2. She states that the incidence of
15.4.1984 has been concocted by the petitioner and
is palpably false. She categorically states that
she had no relationship with any person and all
the statements regarding her illicit relationship
6
was false. She also denies that she had returned
to her father's house on 26.6.1984 without any
intimation. She further contends that her father
had given nearly Rs. 80,000/- to the petitioners
for construction of his house and for other items.
The petitioner had forcibly taken her to
Muzaffarpur in August 1990, and taken her
signature on blank sheet and on Vakalatnama under
threat and duress and which incident was reported
by her father before the Women Cell. The
incidence of the Dushehra was also categorically
denied by her. She complained of torture at the
hands of the husband, his elder brother and the
elder brother's wife. She also denies that she
had severed her relationship with the petitioner
on 26.6.1984. The incidence of 4.3.1990 regarding
assault on the petitioner has also been denied by
her. The defendant contends that it is the
petitioner who is having illicit relationship with
his sister-in-law and which is the genesis of the
whole matter. She has also in her written
statement charged the petitioner of assaulting her
with the help of armed unsocial elements.
4.1) She has further stated that it was
the petitioner who had subjected her to various
forms of torture. She denied the charge of
misrepresentation and stated that it was the
petitioner who had been misrepresenting her. In
7
support of her statement, she referred to an order
passed by this Court in the bail application filed
by the petitioner in which he had contended before
the Court that he was living with her. Defendant
No.1 submits that believing him she admitted
before this Court that they were living together
and in this process he was granted bail by this
Court, but she subsequently, realized that the
petitioner had played fraud upon her.
4.2) Defendant no.1 also stated that the
proceeding under Section 107 Cr.P.C. has been
dropped. Defendant No.1 states that save and
except Patliputra P.S. Case No. 218 of 1991, she
had no concern with the other cases.
5) Defendant No.2 filed his written
statement and denied all the charges of having
illicit relationship with defendant No.1, as set
out in the plaint, and stated that the entire
allegations were false and baseless.
6) On the basis of the pleadings made by
the parties, the learned Court below framed the
following issues.
"12. On the basis of the pleadings of
the parties the following issues arise for
determination in this case:-
(1) Is the suit, as framed, maintainable?
(2) Has the petitioner has got any cause
of action ?
(3) Is the respondent No.1 guilty of
adultery and she living in adultery
with respondent No.2 Madan Dubey?
(4) Whether the petitioner is living in
adultery with his sister-in-law,
8
Shankutala Tripathi?
(5) Is the respondent No.1 guilty of
committing cruelty?
(6) Whether any misrepresentation was
made at the time of marriage
negotiation that the respondent no.1
was graduate though she had appeared
at Matriculation Examination?
(7) Whether the respondent No.1 deserted
the petitioner?
(8) To what relief or reliefs if any the
petitioner is entitled?"
7) Upon consideration of the plaint,
written statement(s), amendment petition, the oral
arguments advanced on behalf of the parties and
the materials on record the learned Family Court
was pleased to dismiss the suit vide judgment and
order dated 29.7.1995. The learned Court below
held that the petitioner had failed to prove the
charges of adultery, cruelty, and desertion
against defendant No.1. It was held that the
petitioner had no cause of action to obtain a
decree of divorce. The suit was dismissed with
costs. The petitioner thus is before us by way of
the present appeal assailing the judgment and
order passed by the learned Court below.
8) Mr. Rajiv Verma, learned Senior Counsel
appearing on behalf of the petitioner reiterated
the statements in the plaint and the two amendment
petitions referred to above. He also referred to
the written statements filed on behalf of
defendant No.1 and defendant No.2. With reference
to the statements made in the plaint, Mr. Verma
9
submitted that the alleged acts of cruelty,
adultery and desertion stand fully proved as
against defendant No.1. He submits that the
marriage was consummated on 22.4.1984, and within
a month of the marriage, i.e. on 15.5.1984, the
petitioner found defendants in objectionable
position. Thereafter on 26.6.1984, defendant No.1
had left the matrimonial house to reside with her
parents and whereafter she did not return, rather
instituted a number of cases against him.
8.1) Mr. Verma further submits that the
parties have been living separately since 1984,
i.e. more than 25 years, and the marriage has
irretrievably broken down. He further submits
that the parties are not willing to live together.
Therefore, no fruitful purpose would be served by
dismissing this appeal. Mr. Verma, has relied
upon the deposition of defendant No.1 in the
maintenance suit bearing Case No. 95 of 2002, and
in which defendant No.1 had categorically stated
that she was not willing to stay with the
petitioner. Mr. Verma has relied on the following
judgments:-
(I) AIR 2006 SCC 1675
(Navin Kohli versus Neelu Kohli)
(II)AIR 2003 Allahabad 51
(Poonam Gupta versus Ghanshyam Gupta)
(para 14 to 15).
(III)2005 (7) SCC 352
(Durga Prasanna Tripathi versus
Arundhati Tripathi)(para 16 &21 to 27)
10
9) Mr. Shiv Nandan Roy, learned Senior
counsel appearing on behalf of defendant No. 1,
supports the impugned judgment and submits that
the appeal has no merit and was fit to be
dismissed, inasmuch as the petitioner had failed
to prove either of the three charges set out
before the Court below as well as this Court for
grant of divorce, namely, adultery, cruelty,
desertion and false representation. He relied on
Ext. A and Ext.A/1, which are letters written by
the petitioner to defendant No.1, and submits that
any husband being infuriated by the adulterous
acts of his wife would loath to write such
letters. He further refers to the evidence of the
father of the petitioner who had appeared as the
defendant witness and supported the case of
defendant No.1. He further refers to Ext. D which
is the order of this Court granting bail to the
petitioner and submits that any charge of adultery
would stand waived by the statement made by him
before this Court for the purpose of securing
bail.
9.1) Mr. Roy submits in the same vein that
the charge of desertion is also palpably false and
in support of his submission again refers to Ext.
A and Ext.A/1, which are letters written by the
petitioner to defendant No.1 and states that the
11
contents thereof substantially prove that it was
the husband who had sent defendant No.1 to her
Naihar and that she had not gone on her own
volition. He also refers to Ext. B which is the
medical certificate for the period of 29.12.1984
to 2.1.1985, and the address mentioned wherein is
that if the petitioner and which according to him
by itself was sufficient to dispel the
petitioner's charge that defendant No.1 left the
matrimonial house on 26.6.1984.
9.2) Mr. Roy further submits that the
charge of false representation stands falsified by
the evidence of the father of the petitioner who
deposed as O.P. witness No.2, and stated that no
such statement regarding defendant No.1 being a
graduate had been made by the girl's parents. He
further submits that neither there was any act of
cruelty on the part of defendant No.1, nor the
marriage has broken down.
9.3) In the same vein, Mr. Roy submits
that irretrievable breaking down of marriage is no
ground for grant of divorce under Section 13 of
the Hindu Marriage Act. Hence no divorce can be
granted to the petitioner. In support of his
submission, Mr. Roy relied upon a judgment
reported in 2009(2)PLJR(SC) 200 paragraph 10 to
12 (Vishnu Datt Sharma Versus Manju Sharma)
10) Mr. Rajiv Verma in reply reiterates
12
his submissions with reference to the paragraphs
of the plaint and the evidence on record and the
judgments cited and referred to herein above.
Mr. Verma further submits that
admittedly, the parties have been living
separately for more than two decades and all the
efforts of reconciliation between the parties have
failed and in such circumstances, continuation of
the marriage would be an act of cruelty. In
support of his submission, Mr. Verma in addition
to the judgment of the Apex Court rendered in the
case of Naveen Kohli (Supra) relied upon the
following judgments:-
(I) AIR 2008 SC 3093(Satish Sitole
Vs.Ganja) para 7 to 12
(II) 2007(1) PLJR SC 75 (para 5 to 7)
(Rishi Kant Sharma versus Saroj
Sharma).
He submits that the learned Principal Judge
while dismissing the suit had failed to appreciate
the issues in its perspective and in the back drop
of the evidence. He further submits that the
learned Court below was swayed by misplaced
sympathy in favour of the defendant.
Mr. Verma further submits that the judgment
of the Apex Court in the case of Vishnu Datt
Sharma(supra) was in a case based exclusively on
the issue of irretrievable break down and the
13
additional aspects which arise in the present
dispute, did not fall for consideration before the
Apex Court. He further submits that although a
reference has been made in the said judgment
regarding the earlier judicial pronouncements on
the issue, but the reasonings and the law settled
in those judgments have not been answered in the
case of Vishnu Datt Sharma(Supra). Concluding
his arguments, Mr. Verma submits that whereas all
the judgments cited by him in support of his
submissions are in exercise of jurisdiction under
Article 142 of the Constitution of India, but the
judgment in the case of Vishu Datt Sharma(supra)
does not fit in the same category.
11) Faith and mutual understanding between
the parties is a sine qua non to the institution
of marriage and key to conjugal happiness. The
moment either of the two gives way, it leads to a
dent in the relationship, which if not repaired by
mutual reasonings or reconciliation with the help
of elders, relatives and friends, ultimately leads
to a situation like the case in hand. Marriage is
not just about chanting hymns or taking rounds of
the fire, it is much beyond that. In fact, as per
Hindu mythology, marriages are pre-ordained in
heaven and the ritual performance is only the
execution of what is pre-determined.
12) Proceeding on the well established
14
principle that every effort should be made by the
parties, their elders, relatives, friends and even
the Courts to bring about a reconciliation between
the contesting parties, this Court had tried to
bring about a reconciliation between the parties
and had expressed desire to refer the matter for
mediation to the Patna High Court Mediation Centre
at the choice of the respondent/wife. The relevant
extract of the order dated 20.3.2009, is
reproduced herein below :-
"By order dated 22.05.2008, this Court had given
an option to the appellant to pay a sum of Rs. fifty lacs
as permanent alimony in lieu of divorce in the instant
case. To enable the appellant to exercise that option,
the case was adjourned for two weeks after the
summer vacation of the year 2008. Obviously, the
appellant did not accept the said option.
Today, nobody has appeared on behalf of the
appellant. Learned Counsel for the respondent wife is
present. He did not have any instructions as to
whether in spite of failure of the earlier option, the
respondent-wife is inclined for a compromise in the
matter or not.
The situation is that the appellant was married to
the respondent no. 1 in 1984 but they appear to have
separated and remained involved in the litigation for
the last 17 years.
In the aforesaid facts and circumstances, it
appears in the interest of justice that an opportunity
may be given to the parties for settling their dispute
through mediation provided they are agreeable.
Learned Counsel for the respondent wife prays for one
week's time. If the respondent-wife opts for mediation,
this Court would like to refer this matter for mediation
to the Patna High Court Mediation Centre even if
learned Counsel for the appellant chooses not to
appear. If required, notices may have to be sent to the
appellant for the proposed mediation if the
respondent-wife opts for the same.
Put up this case under the same heading after one
week."
12.1) On the next date i.e. 15.4.2009, none
15
appeared for the respondent. On 13.5.2009 it was
jointly submitted on behalf of the parties that
the matter had been dissolved outside the Court
on certain terms and conditions which has been
reproduced in the order of this Court dated
13.5.2009 which is reproduced herein below for
quick reference
" Mr. R K Verma for the appellant, and
Mr.Shiv Nandan Rai for respondent no.1, are
present. Respondent no.1 along with her
father are present in Court. It is
submitted on behalf of the parties that
they were married way back in 1984, and
have been living separately ever since
1986. There is now no chance of
reconciliation and coming together. The
marriage has irretrievably broken down. It
is jointly submitted on behalf of the
parties that the matter has been dissolved
outside Court on the following terms and
conditions:-
(i) The appellant shall pay a sum of
Rs.8,00,000/- (Eight
lacs only) to respondent no.1.
(ii) The marriage between the parties shall
be dissolved by mutual consent.
(iii) All litigations between the parties
shall come to an end. The appellant is
facing trial in Patliputra PS Case
No.218/91, corresponding to GR Case
No.5643/91,currently pending in the Court
of the learned Sub Divisional Judicial
Magistrate, Patna, under Section 498A of
the Indian Penal Code read with Sections 3
and 4 of the Dowry Prohibition Act.
Let the parties file their separate
applications personally
sworn by them incorporating the aforesaid
terms and conditions on or before
18.5.2009. Put up on 20.5.2009 in the same position. The appellant shall be ready with demand draft(s) for a total sum of Rs.8,00,000/- (eight lacs only), in favour of respondent no.1.
Let copies of this order be handed over to learned counsel for the parties forthwith."
16The order dated 13.5.2009 passed by this Court appeared to be a possible solution to the issue that was engaging the attention of this court since 1.9.1996, and the seeds of which were sown even earlier as back in the year 1986 i.e. over a period of 23 years.
12.2) However, to utter dismay of this Court, an interlocutory application came to be filed at the instance of the respondent No.1 bearing I.A. No. 3347 of 2009, whereby prayer was made to recall/modify the order dated 13.5.2009, and for hearing and disposal of the appeal on its own merits. Respondent No.1 denied the factum of dissolution of the marriage outside the Court, and also denied that she had agreed for divorce on accepting Rs. 8,00,000/-
In view of the submission made by respondent No.1 in the interlocutory application referred to above, the matter had to be disposed of on its own merits.
12.3) When the matter was taken up for hearing, on 27.7.2009, another offer was made on behalf of the petitioner-appellant herein that he was still willing to live with defendant No.1- respondent No. 1 as husband and wife, or else he was prepared to pay a consolidated sum of Rs. 10,00,000/- as alimony to her for divorce with mutual consent and with the condition that all the 17 litigations between the parties shall come to an end. The offer of the petitioner-appellant finds mention in the order dated 27.7.2009 which is reproduced herein below for quick reference.
"Mr. R.K. Verma for the appellant, and Mr. Shiv Nandan Roy for the respondents are present. The matter has today once again come up under the heading "For hearing". We are mindful of the order dated 13.5.2009, and the order dated 3.7.2009, passed in the present appeal. As soon as the appeal was called out, learned counsel for the appellant made a fresh offer for compromise for the consideration of the respondents. He submits that he is still willing to live with respondent no.1 like husband and wife, or else he is prepared to pay a consolidated sum of Rs.10,00,000/- (Ten lacs) to her for divorce with mutual consent, with the condition that all litigations between the parties shall come to an end. Let respondent no.1 consider the same.
2. The appellant has placed on record a paper book prepared by him. Learned counsel for the respondents submits that this does not include the depositions of the defendants nor copies of the documents marked exhibits at the instance of the defendants. In that view of the matter, let the office prepare four sets of supplementary paper-book incorporating photo copies of the depositions of the defendants, as well as the exhibits on behalf of the defendants within a period of one week.
3. This appeal was really filed in the year 1995, and that too in a matrimonial matter, and it cannot bear any further adjournment. It will, therefore, be open to the learned counsel for the parties to refer to the depositions and/or documents from the lower court record, if not incorporated in the paper book.
4. Put up on 17.8.2009 under the heading "To be mentioned".
Thereafter the matter was taken up on 18 17.8.2009 when the counsel appearing for the defendants submitted that the offer made by the petitioner incorporated in the order dated 27.7.2009(supra) was not acceptable to the defendants and that the matter be heard and disposed of on merits.
We have taken the pains to reproduce the developments which took place during the course of hearing of the present appeal only for the purpose that every effort and the possible solution were tried by the Court to bring the parties to a settlement but without success. We thus proceed to decide the issue on merits.
13) The admitted position is that the parties are living separately since 1986 i.e. a period of over 23 years. The trial Court upon consideration of the pleadings, the oral arguments, and the materials available on record was of the opinion that the petitioner herein had failed to substantiate either of the three grounds taken for the purpose of securing a decree of divorce i.e. cruelty, adultery and desertion, and which finding of the court below has been put to test before us. Learned counsel appearing on behalf of the petitioner has tirelessly argued to repel the findings of the learned Court below with the aid of oral and documentary evidence, and learned counsel for the defendant-wife has supported the 19 reasonings assigned by the learned Court below for dismissing the suit. Be that as it may, the fact remains that neither defendant No.1 is willing to cohabit with the petitioner, nor she is willing for any form of settlement.
14) Section 13 of the Hindu Marriage Act sets out the grounds and circumstances under which either of the parties may obtain a decree of divorce. Amongst all forms of litigation, a petition for divorce is without doubt the most unfortunate form plaguing the Courts. We say so for the reason that a petition for divorce aims at separating two people who until then were living in unison and sharing secrecy and both the essential attributes are sacrificed at the altar of divorce and are replaced by ugly forms of mudslingings. Situations like the present one where parties have separated and were living separately for a period of one and half decade or more without their being any chance of reconciliation, attracted the attention of the Apex Court and a number of authoritative pronouncements were made in the backdrop of circumstances where the grounds set out in Section 13 of the Hindu Marriage Act could not be satisfied by the person claiming divorce. The Apex Court has taken a view that in the circumstances where there was no chance of any 20 patch up or reconciliation between the parties, then the parties should be allowed to go their individual way rather than to keep them bound in an unwilling marriage.
15) The word cruelty is relative in nature and differs from person to person. Cruelty thus has to be adjudged upon consideration of the extent and manner in which an act of a spouse has affected the person complaining of the same. It is not only the physical form of inflictions that amounts to cruelty. Cruelty can also be inflicted through mannerisms, utterances, and through behavioural pattern. A husband not willing to stay with his wife or its converse may form an act of cruelty in the eyes of some. To some, a husband and wife living under the same roof but as two separate individuals can be another form of cruelty. As such, cruelty need not be in any defined physical form, it can also flow from behaviour of the individual.
16) The judgment of the Satish Sitole (supra) was a case in which the husband was found to be unable to make out any grounds for divorce but the facts demonstrated that the parties had been living separately for the last 14 years. The effort of the Court at reconciliation had failed. In the circumstances, the Apex Court relying upon the judgment in the Case of Anjana Kishore versus 21 P. Kishore (2002) 10 SCC 194, Swati Verma versus Rajan (2004) 1 SCC 123, and the case of Durga Prasana Tripatri (supra), while holding that the marriage had broken-down irretrievably and continuation of the same would amount to cruelty, was pleased to order for dissolution of the marriage with conditions for payment of permanent alimony to the extent of Rs. 2,00,000/- , and cost of Rs. 25,000/-
17) Without expressing any opinion on the contentions advanced on behalf of the petitioner to substantiate the charge of adultery and desertion, we take upon us the duty of examining whether the petitioner has made out a case of mental cruelty and/or whether the learned Court below has appreciated the issue in the backdrop of the surrounding circumstances. As stated, cruelty is a relative term and can be mental or physical. Once the parties separate for whatever reason and the separation is followed by a petition of divorce, the process of break-down of the marriage is set in motion. The only aspect that needs consideration thereafter is whether there is any chance of bringing the parties together and whether the parties are willing to come together. In the present case the admitted position is that the parties have remained separated for a period of over two decades and all efforts towards 22 reconciliation /settlement / rapprochement has failed and evidence of which is found in the various orders of this Court reproduced hereinabove. The very fact, being the admitted position that they have not lived together for such a protracted period amidst bitten accusations and counter accusations of infidelity, and criminal case at the instance of the wife in which the husband has suffered incarcerating as an under-trial prisoner speaks loudly of a situation that the marriage has irretrievably broken down. This has to be read with the persistent efforts of this Court for reconciliation which have completely failed.
18) In the circumstance noted above where, neither defendant No.1 is willing to be party to an amicable settlement including payment of permanent alimony, nor is she willing to stay with the petitioner, would it be advisable to negate the prayer of the petitioner for divorce. The answer has to be in the negative. May be in the opinion of the learned trial Court, the petitioner had failed to substantiate his charges, but in the changed circumstances including the one where he has shown willingness to stay with defendant No.1, and to continue as husband and wife and has also given an alternative option to defendant No.1 of paying Rs. 10 lacs as permanent alimony for an end 23 to all forms of litigations, and which has been rejected by respondent No.1, the issue need not detain us any further.
19) In this connection we are reminded of the judgment of the Apex Court rendered in the case of Samar Ghosh versus Jaya Ghosh reported in 2007 (4) SCC 511. A three Judge Bench of the Apex Court has explained in detail the concept of mental cruelty as envisaged under the provisions of Section 13 of the Hindu Marriage Act. Their Lordships while examining the issue have held that a petition of divorce is either based on a fault theory also known as matrimonial offence theory found under Section 13 of the Hindu Marriage Act, or the break-down theory, which is the case in hand. Their Lordships have held that there could not be any comprehensive definition of mental cruelty covering all forms of cases and that the concept of cruelty differs from person to person depending upon various factors like sensitivity, educational, family and cultural background, financial position, social status, human values etc. Their Lordships while taking into consideration a catena of judgments including the one rendered in the case of Naveen Kohli (supra) have held as follows:-
"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 24 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 vers. 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 back 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 25 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 behaviours of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii)Unilateral decision of refusal to have intercourse for considerable period without there
being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the 26 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.
102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more then sixteen-and-a-half years (since 27-8-1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent."
20) The judgment rendered in the case of Samar Ghosh (Supra) applies with full force to the present case. The parties in the said case had been living separately for 16½ years and in the present case the period of separation is almost 23 years and respondent No.1 is not willing to return to her matrimonial home or settle for divorce with mutual consent together with alimony. Following the law laid down by the Apex Court in the case of Samar Ghosh (supra) and the other judgments cited by the learned counsel appearing on behalf of the petitioner on the issue of cruelty culminating in irretrievable break down of marriage, we come to the irresistible conclusion that the act of respondent No.1 in neither willing to return to the matrimonial home nor willing to allow a peaceful divorce to the petitioner, proves beyond any doubt that there is no chance of marriage 27 being retrieved and continuance of such marriage would itself amount to cruelty.
21) For the reasons assigned hereinabove, the judgment rendered in the case of Vishnu Datt Sharma(supra) does not come to the aid of the respondent
22) In the result, this appeal is allowed, the judgment and order dated 29.7.1995, passed by the learned Principal Judge, Family Court, Patna, in Matrimonial Case No. 20 of 1990/141 of 1992, is set aside, and we hold that the marriage of the petitioner and respondent No.1 hereby stand dissolved. However, there shall be no order as to costs.
(Jyoti Saran ) I agree S.K. Katriar (S.K. Katriar) Patna High Court Dated 17th September,2009 Bibhash AFR