Allahabad High Court
Deepak Bose vs Shrabonee Bose on 14 March, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- SECOND APPEAL No. - 612 of 2013 Appellant :- Deepak Bose Respondent :- Shrabonee Bose Counsel for Appellant :- Chandan Sharma, Anand Kumar Srivastava, Sushmita Mukherjee Counsel for Respondent :- Ajay Kumar Srivastava Hon'ble J.J. Munir,J.
1. The husband, who has failed before the two Courts below to secure a decree of divorce, has appealed under Section 100 of the Code of Civil Procedure, 1908, asking those decrees to be overturned and a decree of divorce granted.
2. The fact giving rise to this appeal are these:
3. Deepak Bose, the appellant here, instituted a petition for divorce against Smt. Shrabonee Bose, the sole respondent, before the Civil Judge (Senior Division), Ghaziabad, seeking a decree for divorce under Section 13 of the Hindu Marriage Act, 1955. The petition was registered as Marriage Petition No.1098 of 2010. It was pleaded in the petition, inter alia, that Deepak Bose and Shrabonee Bose were married according to Hindu rites on 11.07.2001. In course of time, two sons were born to the parties. Deepak Bose, who shall hereinafter be referred to as ''the appellant', says that he discharged his duties as a husband faithfully. It is asserted by the appellant that at the time of marriage, it was represented that Shrabonee Bose, who shall hereinafter be called ''the respondent', was of the same age as that of the appellant. It was also represented to the appellant that the respondent was unmarried, though, in fact, she is a divorcee. The appellant came to know of the fact that the respondent was a divorcee six years after the parties' marriage in the year 2001.
4. It was pleaded that the respondent is three years' older to the appellant. Upon further inquiry, it came to the appellant's knowledge that the respondent was first married in the year 1990, and she and the man she had earlier married, divorced in the year 1996. It was asserted that in the aforesaid manner, the appellant and his family members were defrauded by falsehood into marrying the respondent. The respondent was also castigated as a woman of questionable character, inasmuch as after the appellant would go to sleep, she would be busy on her phone until late in the night and exchange e-mails and SMSs. It is said that when the appellant asked the respondent to desist from this kind of interaction, she refused and remained firm on her stand. It is pleaded that the respondent wants to stay away from the appellant. The respondent did not serve the appellant's old, ailing and dependent mother in any way. The respondent is said to have exerted pressure upon the appellant to forsake his mother and in that endeavour of hers, she had the support of her family.
5. It is the appellant's further case that despite persuasion by him that the respondent ought to take care of his mother, she stuck course. After the appellant would go away to work, the respondent never served meals to his mother on time or gave her medicines. Any persuasion would lead the respondent to fight the appellant. It is the appellant's case that the daily bickerings mounted so much of anxiety that it resulted in him suffering from diabetes. It is the appellant's further case that it was heightened pain for him when the respondent and her family asked him to resign his job and move over to Jamshedpur forsaking his old mother. The appellant is employed with a company, that manufactures computers, on a good position. He draws a handsome salary. He takes care of his mother and cannot forsake her. It is pleaded that any attempt by the appellant to persuade the respondent to be amiable towards him and his mother would lead her to fight the appellant, to the extent of assaulting him. The respondent's behaviour is claimed to be casting an ill-effect upon the parties' sons.
6. It is the appellant's further case that in the backdrop of all that has been indicated, the respondent suddenly left her matrimonial home on 22.11.2007, along with her father and brother, quietly and without informing the appellant. The appellant went over to the respondent, asking her to come back along with her children a number of times, but to no avail. The appellant, upon visiting his in-laws, was insulted and turned away. The appellant had also addressed letters to the respondent, which have led to no positive answer. It is also pleaded that on 22.11.2007 the respondent fought the appellant on the foot of unreasonable demands and refused to continue in matrimony, that is before she left the appellant along with her father and brother. It is on these facts that the appellant asked for a decree of divorce petitioning the Court under Section 13 of the Hindu Marriage Act.
7. The respondent put in a written statement and denied the appellant's allegations. She has pleaded that parties' marriage was solemnized according to Hindu rites, with the appellant being lavished with gifts etc. The parties have two sons, who were then aged six years and five years . The respondent dutifully discharged her obligations as a wife, but the appellant was an aggressive man. In the evenings, he would return home drunk and beat up the respondent. It is also pleaded that the parties' marriage was solemnized according to the socially acceptable form of an arranged marriage, where the respondent had clearly disclosed her age and the factum of her previous marriage to the appellant. It is elaborated that the respondent had informed the appellant about her previous marriage in all detail as also her age. It is only after the appellant had agreed that the family members spoke about settling the matrimonial alliance. It is also pleaded that the appellant is a drunkard and a man described in her pleadings by the respondent as "बुरे चरित्र का व्यक्ति", that would most closely translate into English, for a philanderer. He would abuse the respondent in vulgar language.
8. It is also pleaded by the respondent that the appellant has a number of women friends who have been described in the pleadings as "Mahila Mitra". The appellant would bring them home along and upon the respondent asking him not to do so, would beat her up. It is also pleaded that the appellant is an experienced hand at computers and has doctored e-mails in her account to serve his purpose. The respondent has blamed the appellant and his mother of demanding dowry from her father and in connection with the demand, treating the respondent to vulgar abuses, besides inflicting violence. It is pleaded that fed up with the appellant's behaviour, the respondent called her father over telephone to Ghaziabad and on 22.11.2007, lodged a report with the Indirapuram Police Station. It is also pleaded that the respondent requested the appellant a number of times to permit her and the children to stay with him, but he refused. Left with no other option, the respondent has brought proceedings for maintenance before the Court at Jamshedpur, that were pending until the respondent put in her pleadings.
9. The Trial Court on the pleadings of parties framed the following issues (translated into English from Hindi):
"(1) Whether the opposite party tortured the petitioner physically and mentally, amounting to cruel behaviour, on account of which, it is not possible for the petitioner to stay together with the opposite party?
(2) Whether the petitioner is entitled to a decree of divorce against the opposite party?
(3) Whether the case is undervalued and the court-fee paid insufficient?
(4) Whether the petitioner is entitled to any other relief?"
10. The appellant, in support of his case, filed fourteen documents through a list, Paper No.7ग and another twelve through a separate list, bearing Paper No.43ग. The appellant examined himself as PW-1, filing for his examination-in-chief a duly sworn affidavit, marked Paper No.27क1. He appeared in the dock to face cross-examination.
11. The respondent examined herself in support of her defence as DW-1, and in lieu of her examination-in-chief in the witness-box, filed an affidavit bearing Paper No.41क1. She entered the witness-box to face cross-examination as DW-1. Likewise, another witness, DW-2, Gajendra Tyagi was also examined, who filed his evidence on affidavit that he supported in the witness-box under the grill of cross-examination.
12. The Trial Court did not find on Issue No.1 a case of cruelty established and while returning finding on Issue No.2, held that a case for annulling the marriage on ground that the respondent's consent to it was secured by fraud as to a material fact concerning the respondent, to be not open in view of the bar of limitation under Section 12(2)(i) & (ii) read with Section 12(1)(c) of the Hindu Marriage Act, 1955. So far as the ground urged under Section 13(1)(i) of the Hindu Marriage Act is concerned, the Trial Court opined that there was no evidence to show that the respondent had violated the aforesaid mandate of the law. On these findings broadly, the Trial Court dismissed the petition.
13. The appellant carried an appeal to the District Judge under Section 28 of the Hindu Marriage Act, 1955. The appeal was numbered on the file of the District Judge, Ghaziabad as Civil Appeal No.167 of 2012, where in the grounds of appeal together with cruelty, a case of desertion on the pleaded facts was also raised. It appears that when the appeal was argued before the Lower Appellate Court, a case for divorce as also a decree of annulment was argued, based on act(s) of adultery by the respondent under Section 13(1)(i); a case based on cruelty and desertion under Sections 13(1)(ia) and 13(1)(1b) of the Hindu Marriage Act; a case for annulment based on fraud practiced by the respondent in obtaining the appellant's consent to the marriage under Section 12 of the Hindu Marriage Act; and, a case for divorce based on irretrievable breakdown of marriage on foot of the provisions of Section 13(1)(1A) of the Hindu Marriage Act. It is on the aforesaid grounds that the Lower Appellate Court extensively examined the evidence led by parties, both oral and documentary, and dismissed the appeal.
14. Aggrieved, this appeal from the appellate decree has been preferred.
15. The appeal was admitted to hearing vide order dated 28.05.2013, when the following two substantial questions of law were formulated:
"(A) Whether the opposite party leaving the Matrimonial home for more than five years amounts also to leaving the appellant, thereby amounting to desertion under Section 13(1)(b) of Hindu Marriage Act, 1955?
(B) Whether desertion without a reasonable cause and without the consent of the party aggrieved during the wedlock shall amount to cruelty under Section 13 of the Hindu Marriage Act?"
16. Before commencement of hearing, a further substantial question of law, marked (C) was formulated on 06.08.2021. It reads:
"(C) Whether it is open to the High Court to pass a decree of divorce on the ground of irretrievable break down of marriage in a petition brought for divorce under Section 13 of the Hindu Marriage Act, 1955?"
17. The respondent, despite all efforts to serve her, did not appear. Those efforts included substituted service by publication. Service was held sufficient vide order dated 04.07.2019. From 2019 till the appeal proceeded to hearing, no one appeared on behalf of the respondent. The appeal was, therefore, heard ex parte and judgment reserved.
18. Heard Mr. Anand Kumar Srivastava, learned Counsel for the appellant.
19. So far as Substantial Question of Law (A) is concerned, it is to be seen whether the five years that the respondent completely forsook her matrimonial home amounts to desertion within the meaning of Section 13(ib) of the Hindu Marriage Act. The Lower Appellate Court in examining the question of desertion, coupled with cruelty, has assessed it on five parameters, to wit, (i) the factum of separation; (ii) animus deserendi or intention to desert; (iii) desertion should be without consent of the appellant; (iv) desertion should be without any reasonable cause; and, (v) the statutory period of two years of desertion, should elapse immediately preceding the presentation of the petition. The Lower Appellate Court has held, on appreciation of evidence, that the factum of separation, desertion being without the consent of the appellant and the desertion continuing across a period of more than two years preceding the presentation of the petition are well established. The Lower Appellate Court, however, has held that animus diserendi and further that the desertion is one that is without reasonable cause, are not established. In reaching those conclusions, the Lower Appellate Court has evaluated the conduct of the respondent to hold that she did not harbour an intention to desert and was impelled by the appellant's conduct into withdrawing from his company. What conduct of the appellant, the Lower Appellate Court and the Trial Court too have taken into account, in order to reach that conclusion, would be shortly noticed.
20. Before the substantial question of law involved is answered, it is imperative to examine the law governing actionable desertion under the Hindu Marriage Act, 1955 and the standard by which it is required to be proved. There is a classic statement about the law relating to desertion to be found in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SC 73, where it has been held:
"8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held : (AIR pp. 183-84, para 10) "For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years' period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."
9. Following the decision in Bipinchandra case [AIR 1957 SC 176] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
10. To prove desertion in matrimonial matter it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case."
21. The Lower Appellate Court, while appreciating the evidence of parties, has acknowledged the fact that it is a case where the parties have traded allegations of immorality and soiling the marital bond against each other. It is true that these allegations have figured in the evidence of both parties. But the Courts below, particularly the Lower Appellate Court, has accepted it for a reasonable cause for the wife to leave her matrimonial home, her case about the husband being a drunkard, a wife-beater and a man given to the vice of illicit relations with women. The Lower Appellate Court has been impressed by the fact that some women have been named by the wife, who were brought home by the appellant to gratify his immoral needs.
22. There are allegations, on the other hand, by the appellant against the respondent about speaking to men over social networking sites etc. These allegations have been discarded, for the documentary evidence about them being not proved according to Section 65-B(4) of the Indian Evidence Act, 1872. The respondent has emphasized somewhere that up to the month of August, 2007, it was the respondent alone, who was at the receiving end of the appellant's beating, but the children were not the victims of it. Therefore, the respondent was suffering the violence until then. Later on, the children too would be beaten up. From all this evidence, the Courts below have concluded that the respondent had reasonable cause to leave her matrimonial home.
23. This Court is of opinion that approach of the Courts below, particularly the Lower Appellate Court, that has attempted a more wholesome appraisal of the evidence, suffers from fundamental errors of a kind that bordering on perversity. The reason is that the allegations of the wife in the witness-box have been accepted to be proof of themselves, ignoring glaring circumstances that are essential to judge the veracity of the parties' statements in the dock in a matter like the present one. It is a case where the strained spouses have come up with nothing more than allegations said on oath. The Courts below have not been wrong in discarding the appellant's allegations about the respondent's fidelity; but they are wrong to the extent of defiance of logic in accepting every word that the respondent has said in justification of her action in leaving the matrimonial home. The most crucial point, that appears to have been missed by the Courts below, is that there is nothing on record to suggest that there was any particular event on 22.11.2007 when the respondent left her matrimonial home and went over to her parents. On that date, she left an information with the Police, that was never registered as a case, saying that she was subjected to violence by the appellant, not permitted to speak to anyone, even her parents and had been attempted to be throttled to death on two occasions. Thereafter, she somehow managed to leave her matrimonial home along with the two sons, informing the Police. However, much by contrast in her dock evidence during cross-examination, the respondent has said that she was thrown out of her matrimonial home on 22.11.2007, and, therefore, while leaving, she had informed the Police. It is not this essential contradiction in evidence that troubles this Court, for we are not a Court of fact. The crucial point, that the Courts below have completely ignored to reach an illogical and perverse conclusion from this evidence, is that about all these violent happenings that the respondent alleges, there is no circumstance or contemporaneous evidence that may lend any support to it. There is no evidence like a complaint to any Authority at any time prior to 22.11.2007 about all this physical violence or even some kind of a correspondence, electronic or in ink, exchanged by the respondent with her parents about this distress in her life. Prior to 22.11.2007, there is hardly anything on record to show that the respondent was ever battered or attempted to be throttled, or that she was in great distress because the appellant was a drunkard or a man given to a lecherous way of life. There is not an iota of evidence about all this. The only inference, therefore, from the allegations traded on both sides that can be drawn is that the couple have not got along, despite being blessed with two children and have not been able to overcome the wear and tear of married life. The fact that the respondent and the appellant could not get along in matrimony, is by itself not a reasonable cause, justifying the respondent's action in leaving her matrimonial home.
24. The way the evidence appears in this case, there is not a hint of evidence to show that the appellant has indulged in the immoral way of life, as the respondent alleges. The appellant in his cross-examination has stoutly denied any amorous relationship with woman/women. He has not been confronted with any fact during his cross-examination, requiring him to explain any circumstance going against him on this count. It is well reputed that it is difficult to prove a negative fact. In the absence of the respondent placing on record some evidence to show the waywardness she alleges for the appellant, he cannot be saddled with the burden of establishing that he is not a drunkard, or a man of immoral character or a wife-beater. In accepting the wife's oral testimony as proof of itself, the Courts below have virtually placed burden upon the husband to prove the non-existence of these blameworthy facts, that would justify the wife's action in withdrawing from the husband's company. This approach of the Courts below is fundamentally flawed and perverse.
25. On the other hand, the appellant's case that the respondent has not been serving meals to his mother on time or giving her her medicines, may show a mindset that does not accord well with contemporary social values and the marital roles for spouses. Likewise, the appellant suspecting the respondent for interacting on social media with a long list of friends, may also be the pitfall of a value gap between the spouses, or the appellant and the respondent representing two different social outlooks in a society that is in the throes of transition about gender roles generally, particularly, in matrimony. But, all these differences, that have marred the parties' marriage, would not, by a reasonable standard, serve as a justification for the wife to permanently forsake the husband's company. These truly do not go beyond what is conventionally called ''wear and tear of marriage'.
26. The course of events in this case show that the respondent has not ever made any effort or taken any step to resume her matrimonial life with the appellant. She left her matrimonial home on 22.11.2007, never to return. We think that it would be unreasonable to assume that the wife must come back to her husband's home always, as if it were the employers' premises. The integrity of marriage lies in the husband and wife being together, even if they are separated by distance. The matrimonial home has to remain intact to sustain a marriage and not a matrimonial house, as if it were. Here, the animus deserdendi, by no possible approach, can be found to be wanting in the respondent's conduct, a conclusion that the Lower Appellate Court has drawn on a perverse approach to the evidence. The respondent left home on 22.11.2007 and ever since, it has been a complete disjunct between the spouses. The appellant has said in his evidence during cross-examination, in answer to a recorded question, that during the six months after the respondent left her matrimonial home, he made efforts to re-unite, but ceased to do so upon the respondent launching a prosecution under Section 498A IPC etc. against him. The Lower Appellate Court, however, has concluded against the appellant about the fact that he never attempted a restoration of the parties' matrimonial bond, going by the fact that he admittedly did not bring a petition for restitution of conjugal rights. It must be remarked that mere failure to institute a petition for restitution of conjugal rights is no index of the lack of will or intention of a party to the marriage, who says that he/ she tried to restore the ruptured bond. The appellant here has not been contradicted about the assertion that during the six months before commencement of prosecution by the respondent against him, he made efforts towards reunion. The only question put to him appears to be about his failure to institute a petition for restitution of conjugal rights, that he had not done. The fact remains that by now, it has been a period of fourteen years since the respondent withdrew from matrimonial life, forsaking the appellant's company. Ever since, there has been no resumption or revival of the matrimonial ties. In the face of all this evidence to conclude that there has been no desertion within the meaning of Section 13(ib) of the Hindu Marriage Act, 1955, is an approach that is fundamentally flawed and impossible to countenance.
27. This Court, in the exercise of powers under Section 100 of the Code of Civil Procedure, 1908 is not completely denuded of jurisdiction to go into questions of fact, howsoever perversely determined by the Courts below. Decisions that are fundamentally flawed and illogical by all demonstrable standards can be corrected by this Court in exercise of jurisdiction under Section 100 of the Code, as held by the Supreme Court in K.N. Nagarajappa and others v. H. Narsimha Reddy, AIR 2021 SC 4259.
28. In the circumstances, this Court is of opinion that Substantial Question of Law (A) has to be answered in the affirmative, holding a case of desertion established within the meaning of Section 13(ib) of the Hindu Marriage Act, 1955.
29. The next question that falls for consideration is Substantial Question of Law (B), which is to the effect, "Whether desertion without a reasonable cause and without the consent of the party aggrieved during the wedlock shall amount to cruelty under Section 13 of the Hindu Marriage Act?". To this, it may be added that this question would have to be judged with reference to the provisions of Section 13(ia) of the Hindu Marriage Act, 1955.
30. It has been mooted by the learned Counsel for the appellant that an unduly longed separation brought about by the offending spouse, evidencing no concern about the other, would qualify for mental cruelty. This Court has found elsewhere that the evidence is unmistakable that the respondent is now staying away from the appellant for a period as long as fourteen years. To this may be added the fact that during these fourteen years, there has been nothing of the kind happening that the relationship of matrimony between parties evidences. During all these fourteen years the emotions that are the hallmark of a marriage have become extinct, with the parties not knowing what has become of the other. It has been found elsewhere that it is the respondent who walked away never to return or resume the pious relationship.
31. The concept of 'mental cruelty' has received a most comprehensive consideration in the context of Section 13(ib) of the Hindu Marriage Act, 1955 by the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511. In expositing the concept of mental cruelty, their Lordships of the Supreme Court in Samar Ghosh (supra) have observed:
"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."
(Emphasis by Court)
32. In the facts here, the separation between parties has been fourteen long years after the respondent left the matrimonial home on 22.11.2007. All signs of life have been snuffed out of the marriage leaving behind nothing more than a legal skeleton of obligations, and of course, the parties' children. The long separation of fourteen years between parties would lead to an inference of mental cruelty within the meaning of Section 13(ib) of the Hindu Marriage Act, 1955. The Courts below have overlooked this obvious conclusion on facts that admit of no other inference.
33. Substantial Question of Law (B) is, therefore, answered in the affirmative to hold that the long desertion and separation of a spouse would constitute mental cruelty within the meaning of Section 13(ib) of the Hindu Marriage Act.
34. Now, Substantial Question of Law (C) has been addressed at great length by the learned Counsel for the appellant and he submits that whatever be the conclusion on the other two questions, this question ought to be decided.
35. The submission is that the marriage between parties has irretrievably broken down. Given the facts and evidence that we have noticed elsewhere in this judgment, and conclusions already recorded, there is no manner of doubt that it is a dead marriage. The relationship between parties is extinct and no amount of pretense of the marriage surviving by refusing a decree of divorce would bring it back to life. The question, however, is that can this Court pass a decree of divorce on the ground of irretrievable breakdown of marriage? There is some cleavage of opinion amongst various High Courts on the point, and in this Court too, there is division of vote.
36. The question fell for consideration before a Division Bench of this Court in Smt. Shashi Bala v. Rajendrapal Singh, 2020 (2) AWC 149. In Smt. Shashi Bala, Rajeev Misra, J., speaking for the Division Bench, opined:
"20. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed as follows in paragraph 28:-
"28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court's decree. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. "
21. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered this question and observed as follows in paragraphs 7, 8, 10, 11, 12 and 13:-
"7. Therefore, point for adjudication in this appeal is "whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal".
8. Under the provisions of Act, 1955 there is no ground like any "irretrievable breakdown of marriage", justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under Article 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage.
10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 = 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:-
"(i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon'ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710.
(ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and Shyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747.
(iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, (1993) 4 SCC 232.
(iv)The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.
(v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon'ble Apex Court at paragraph No. 21 of the judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra)."
11. The above authorities have been followed by this Court in ''Pradeep Kumar Vs. Smt. Vijay Lakshmi' in 2015 (4) ALJ 667 wherein one of us (Hon'ble Sudhir Agarwal,J.) was a member of the Bench.
12. In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC 379, it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:-
"If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant."
13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in ''Gurubux Singh Vs. Harminder Kaur' (2010) 14 SCC 301. This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan 2016 (115) ALR 689."
37. There is a contrary view expressed by another Division Bench of this Court sitting at Lucknow in Puneet Kumar Trivedi v. Smt. Nikita Pathak, First Appeal No.76 of 2014, decided on 29.04.2020. In Puneet Kumar Trivedi (supra), their Lordships opined in favour of granting a divorce on the ground of irretrievable breakdown marriage, though, it must be said that no principle was laid down there that it is open to this Court to grant divorce on the ground of irretrievable breakdown. In Puneet Kumar Trivedi, after considering the decision of this Court in Shailendra Kumar Singh v. Reeta Singh and another, 2019 SCCOnline All 5316, it was held:
"Taking into consideration the above said position of law on the ground of irretrievable breakdown of marriage and the facts of the present case including the fact that admittedly the parties are living separately since 17.02.2006 till date, meaning thereby that the parties are living separately for more than fourteen years and litigation between the parties was initiated by filing divorce suit by the appellant in the year 2008, as also the observation made by the trial Court, quoted above, to the effect that the efforts to continue with the marriage have been failed and there is no possibility of reunion between the parties and the statement of counsel for the appellant to the effect that even at this stage there is no hope of settlement or reunion between the parties and no fruitful purpose would be served in maintaining the matrimonial relations between the parties as the matimonial bond is beyond repair and the relations between the parties are sufficiently spoiled and for all practical purpose there is an irretrievable break down of marriage, we are of the considered opinion that the finding given by the trial Court that the appellant is not entitled for decree of divorce on the ground of long separation/irretrievable breakdown of marriage is liable to be interfered and the judgment passed by the trial court is liable to be set aside and the appellant is entitled to decree of divorce. In addition to above, we have also observed, herein above, that while recording the finding with regard to the fact related to consumption of pesticide (poison) the Trial Court committed an error of law and fact both as while giving the finding the Trial Court did not consider the statement of P.W.-2 and P.W.-4."
38. The controversy has arisen in the context of the law, which does not provide for irretrievable breakdown of marriage as a ground for divorce. The Hindu Marriage Act does not envisage such a ground. However, their Lordships of the Supreme Court, in a number of cases have proceeded to grant divorce in those cases where the marriage was absolutely extinct. But in those cases, the power was exercised under Article 142 of the Constitution in order to do complete justice. The decisions in cases decided by the Supreme Court would be of little assistance to parties before this Court, who are able to demonstrate on facts a case of irretrievable breakdown. The obvious reason is that the power available to their Lordships under Article 142 of the Constitution is not available with any other Court, including this Court, whatever be the nature of jurisdiction exercised. It is for the said reason that in Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657, their Lordships of the Supreme Court, while exercising the power to grant divorce on the ground of irretrievable breakdown administered a word of caution, reminding other Courts of not being possessed of like authority. In Munish Kakkar (supra), it was remarked:
"19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha [R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409 : (2019) 4 SCC (Civ) 522] , to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.
21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do "complete justice" between the parties i.e. where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case."
(Emphasis by Court)
39. There are some pertinent remarks in this connection to be found in a decision of this Court in Pooja Suri v. Bijoy Suri, 2016 SCC OnLine All 300, where it has been very pertinently observed:
"25. Although ''irretrievable breakdown of marriage' is not a ground specifically mentioned in Section-13 of the Hindu Marriage Act, but it, in fact, is the basis of the principle underlying decree of divorce under this provision, as is evident from the meticulous appreciation of the provisions of this Section. The grounds like cruelty, desertion of not less than two years, conversion to another religion, unsoundness of mind, mental disorder, suffering from incurable leprosy, or venereal disease in a communicable form, or renouncement of world, not been heard of as being alive for seven years; or (as incorporated by U.P. State Amendment) reasonable apprehension of harm or injury, non-cohabitation after judicial separation mentioned in Section 13 of the Hindu Marriage Act leads to inference that when such situation has arisen that parties cannot live as spouse and there appears no chances of their re-conciliation, which means the marriage has irretrievably broken down of marriage and there is no chance of it being repaired, then under provisions of Section 13, divorce should be granted. But as Hon'ble Apex Court held that this cause, in its isolation, being not mentioned in Section 13, cannot be taken as ground for granting the divorce. Therefore, although the lower courts had granted the divorce on two independent grounds of cruelty and irretrievable breakdown of marriage, but the second ground of irretrievable breakdown of marriage is exclusive within jurisdiction of Hon'ble Apex Court and is beyond jurisdiction of any other Court in India; therefore, second substantial question of law is decided in affirmative and in favour of appellant.
26. When it is obvious that the marriage between the two cannot, under any circumstances, continue any further and the marriage becomes practically dead, then considering the matters of ''irretrievable breakdown of marriage', or where the repair of broken marriage becomes impossible, it appears appropriate that such grounds may be accepted as ground for divorce. Therefore, this Court suggests the Law Commission of the State to take appropriate steps to consider for incorporating the ground of ''irretrievable breakdown of marriage' as grounds of divorce in Section 13 of the Hindu Marriage Act."
(Emphasis supplied)
40. There is very recent decision of a Division Bench of this Court in Reeta v. Ankit Kumar, AIR 2021 All 225, where it has been categorically held that the power to grant divorce on the ground of irretrievable breakdown of marriage is not available to this Court or any other Court under Section 13 of the Hindu Marriage Act, 1955. The power can only be exercised by the Supreme Court under Article 142 of the Constitution. In Reeta (supra), it has been held:
"26. When we go through Section 13 of the Hindu Marriage Act, 1955, we find that there is no such ground as 'irretrievable breakdown of marriage' of divorce and, thus, the Family Court could not have granted the divorce except on the grounds mentioned in Section 13 of the Hindu Marriage Act, 1955
32. The power exercised by the Apex Court under Article 142 of he Constitution being extraordinary, no benefit can be taken by the respondent- husband from the said decision."
41. The decision, therefore, of the Division Bench of this Court in Puneet Kumar Trivedi must be held confined to its own facts and not a binding precedent.
42. In the circumstances, Substantial Question of Law (C) is answered in the negative and it is held that this Court has no power to grant a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of irretrievable breakdown of marriage.
43. In view of the answer to Substantial Questions of Law (A) and (B), this appeal must succeed.
44. In the result, this appeal succeeds and is allowed. The impugned decree dated 19.02.2013 passed by the Lower Appellate Court and that dated 12.09.2012 passed by the Trial Court are set aside and reversed. The divorce petition is allowed. There shall be a decree dissolving the marriage between the appellant and the respondent forthwith.
45. Costs easy.
46. Let a decree be drawn up accordingly.
47. The lower court records shall be sent down at once to the Family Court along with a certified copy of this judgment.
Order Date :- 14.3.2022 Anoop