SMT. ROOPA SONI versus KAMALNARAYAN SONI
[2023] 14 S.C.R. 871, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 14 S.C.R. 871 : 2023 INSC 814
871
CASE DETAILS
SMT. ROOPA SONI
v.
KAMALNARAYAN SONI
(Civil Appeal No. 5700 of 2023)
SEPTEMBER 06, 2023
[SANJIV KHANNA AND M. M. SUNDRESH, JJ.]
HEADNOTES
Issue for consideration: Whether the trial Court and High Court were 
justiﬁ ed in adopting a hyper-technical and pedantic approach in declining 
the decree of divorce, when both the parties had made serious allegations 
against each other and were living separately for decade and half.
Hindu Marriage Act, 1955 – The appellant-wife registered a 
complaint u/s. 498A of IPC and ss.3 and 4 of the Dowry Prohibition Act, 
1961 – The respondent-Husband had questioned the character of the 
appellant-wife – Petition for divorce – Trial Court and the High Court 
declined decree of divorce – Propriety:
Held: For a decade and half, the parties have been living separately 
– The marriage does not survive any longer, and the relationship was 
terminated otherwise except by a formal decree of divorce – The Trial 
Court and the High Court adopted a hyper-technical and pedantic approach 
in declining the decree of divorce – It is not as if the respondent-husband 
is willing to live with the appellant-wife – The allegations made by him 
against her are as serious as the allegations made by her against him – Both 
the parties have moved away and settled in their respective lives – There is 
no need to continue the agony of a mere status without them living together 
– The judgment of the Trial Court as
conﬁ rmed by the High Court set aside. 
[Paras 17, 19, 20]
Hindu Marriage Act, 1955 – s.13(1)(ia) – Cruelty:
Held: The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955 
has got no ﬁ xed meaning, and therefore, gives a very wide discretion to the 
Court to apply it liberally and contextually – What is cruelty in one case
872 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
may not be the same for another – It has to be applied from person to person 
while taking note of the attending circumstances. [Para 5]
Divorce – Bipin Chander Jaisinghbhai Shah v. Prabhawati – 
Clariﬁ cation of decision:
Held: The decision rendered in Bipin Chander Jaisinghbhai Shah v. 
Prabhawati, 1956 SCR 838 is clariﬁ ed, it is not a proposition to hold that 
the proof required from a petitioner in a matrimonial case alleging cruelty 
is of beyond reasonable doubt, and not of preponderance of probability 
– The Court in Bipin Chander was dealing with a case of desertion, and 
therefore, more onus was ﬁ xed on the person who asserts it – The Court is 
not deciding and adjudicating an oﬀ ence, when a petition for divorce is a 
civil remedy. [Para 12]
Hindu Marriage Act, 1955 – s. 23 – Decree in proceedings – 
Discussed. [Paras 13, 14]
Divorce – Socio-economic stigma and issues attached to woman 
– Discussed. [Para 8]
LIST OF CITATIONS AND OTHER REFERENCES
Shilpa Sailesh v. Varun Sreenivasan 2023 (6) SCALE 402 – followed.
Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 
288 : [2012] 7 SCR 607; Badshah v. Urmila Badshah Godse and Another 
(2014) 1 SCC 188 : [2013] 10 SCR 259; N.G. Dastane v. Mrs. S. Dastane 
(1975) 2 SCC 326 : [1975] 3 SCR 967; Sivasankaran v. Santhimeenal 2021 
(10) SCALE 477; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka 
(1982) 2 SCC 544 : [1983] 1 SCR 49 – relied on.
Reynold Rajamani and
Another v. Union of India and Another (1982) 
2 SCC 474; Dr. Bipin Chander Jaisinghbhai Shah v. Prabhawati 1956 SCR 
838; Lachman Utamchand Kirpalani v. Meena alias Mota (1964) 4 SCR 
331 – referred to.
873
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5700 of 2023.
From the Judgment and Order dated 13.02.2014 of the High Court of 
Chhattisgarh at Bilaspur in FA No.115 of 2011.
Appearances:
Dushyant Parashar, Dinesh Pandey, Manu Parashar, Advs. for the 
Appellant.
Shantanu Sagar, Adv. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
M. M. SUNDRESH, J.
Leave granted.
2. Section 13(1) and 13(1A) of theHindu Marriage Act, 1955 
(hereinafter referred to as Act of 1955) provide for various grounds for 
granting divorce:
“13. Divorce.—(1) Any marriage solemnized, whether before or after 
the commencement of this Act, may, on a petition presented by either 
the husband or the wife, be dissolved by a decree of divorce on the 
ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual 
intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the 
petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not 
less than two years immediately preceding the presentation of 
the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
SMT. ROOPA SONI v. KAMALNARAYAN SONI
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SUPREME COURT REPORTS 
[2023] 14 S.C.R.
(iii) has been incurably of unsound mind, or has been suﬀ ering 
continuously or intermittently from mental disorder of such a 
kind and to such an extent that the petitioner cannot reasonably 
be expected to live with the respondent.
Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, 
arrested or incomplete development of mind, psychopathic 
disorder or any other disorder or disability of mind and includes 
schizophrenia;
(b) the expression “psychopathic disorder” means a persistent 
disorder or disability of mind (whether or not including sub-
normality of intelligence) which results in abnormally aggressive 
or seriously irresponsible conduct on the part of the other party, 
and whether or not it requires or is susceptible to medical 
treatment; or
××× 
××× 
×××
(v) has been suﬀ ering from venereal disease in a communicable 
form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven 
years or more by those persons who would naturally have heard 
of it, had that party been alive; 
[Explanation.—In this sub-section, the expression “desertion” 
means the desertion of the petitioner by the other party to the 
marriage without reasonable cause and without the consent 
or against the wish of such party, and includes the wilful 
neglect of the petitioner by the other party to the marriage, and 
its grammatical
variations and cognate expressions shall be 
construed accordingly].
(1A) Either party to a marriage, whether solemnized before or 
after the commencement of this Act, may also present a petition 
for the dissolution of the marriage by a decree of divorce on the 
ground—
875
(i) that there has been no resumption of cohabitation as 
between the parties to the marriage for a period of one year or 
upwards after the passing of a decree for judicial separation 
in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as 
between the parties to the marriage for a period of one year 
or upwards after the passing of a decree for restitution of 
conjugal rights in a proceeding to which they were parties.”
3. The Amending Act of 1976 (Act 68 of 1976) had introduced clauses 
(ia) and (ib) to Section 13 and Section 13A etc. to liberalize grant of divorce.
The Statement of Objects and Reasons, when the Bill was introduced, clearly 
spells out the reasons in the following words: 
“Statementof Objects and Reasons for the Marriage Laws (Amendment) 
Bill, 1976:
“(1) To liberalise the provisions relating to divorce;
(2) to enable expeditious disposal of proceedings under the Act; 
and
(3) to remove certain anomalies and handicaps that have come 
to light after the passing of the Acts.”
4. Preceding the Bill, the Minister of Law and Justice and Company 
Aﬀ airs addressed a communication to the Chairman of the Law Commission 
of India on 17.01.1974, seeking his view towards liberalizing divorce 
proceedings, which resulted in the 59th Report of the Law Commission 
of India. The Amending Act of 1976 substantially amended Section 13 
of the Act of 1955, while adding some more clauses. Suﬃ  ce to state that 
the
intendment of the Parliament is very clear, which is to liberalize the 
provision of divorce, while being conscious of the protection required for 
the estranged wife. While applying the sub-clauses to Section 13(1) of the 
Act of 1955, one needs to have a proper understanding of the position of 
the spouse opposing the petition for grant of divorce as the consequences 
and impact may diﬀ er from person to person, based upon factors such as 
social setting, educational qualiﬁ cation(s), ﬁ nancial status, employment, 
caste, community, age and place. 
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
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SUPREME COURT REPORTS 
[2023] 14 S.C.R.
5. The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955 has 
got no ﬁ xed meaning, and therefore, gives a very wide discretion to the 
Court to apply it liberally and contextually. What is cruelty in one case may 
not be the same for another. As stated, it has to be applied from person to 
person while taking note of the attending circumstances. 
6. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 
SCC 288this Court suﬃ  ciently sets out:
“22. The expression “cruelty” has an inseparable nexus with human 
conduct or human behaviour. It is always dependent upon the social 
strata or the milieu to which the parties belong, their ways of life, 
relationship, temperaments and emotions that have been conditioned 
by their social status.
××× 
××× 
×××
25. After so stating, this Court observed in Shobha Rani case 
[(1988) 1 SCC 105 : 1988 SCC (Cri) 60] about the marked change 
in life in modern times and the sea change in matrimonial duties and 
responsibilities. It has been observed that: (SCC p. 108, para 5)
“5. … when a spouse makes a complaint about the treatment 
of cruelty by the partner in life or relations, the court should 
not search for standard in life. A set of facts stigmatised as 
cruelty in one case may not be so in another case. The cruelty 
alleged may largely depend upon the type of life the parties are 
accustomed to or their economic and social conditions. It may 
also depend upon their culture and
human values to which they 
attach importance.”
26. Their Lordships in Shobha Rani case [(1988) 1 SCC 105 : 1988 
SCC (Cri) 60] referred to the observations made in Sheldon v. Sheldon 
[1966 P 62 : (1966) 2 WLR 993 : (1966) 2 All ER 257 (CA)] wherein 
Lord Denning stated, “the categories of cruelty are not closed”. 
Thereafter, the Bench proceeded to state thus: (Shobha Rani case 
[(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , SCC p. 109, paras 5-6)
“5. … Each case may be diﬀ erent. We deal with the conduct 
of human beings who are not generally similar. Among the
877
human beings there is no limit to the kind of conduct which may 
constitute cruelty. New type of cruelty may crop up in any case 
depending upon the human behaviour, capacity or incapability 
to tolerate the conduct complained of. Such is the wonderful 
(sic) realm of cruelty.
6. These preliminary observations are intended to emphasise 
that the court in matrimonial cases is not concerned with ideals 
in family life. The court has only to understand the spouses 
concerned as nature made them, and consider their particular 
grievance. As Lord Reid observed in Gollins v. Gollins [1964 
AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966 (HL)] : (All 
ER p. 972 G-H)
‘… In matrimonial aﬀ airs we are not dealing with objective 
standards, it is not a matrimonial oﬀ ence to fall below the 
standard of the reasonable man (or the reasonable woman). 
We are dealing with this man or this woman.’ ”
××× 
××× 
×××
32. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], this Court, 
after surveying the previous decisions and referring to the concept 
of cruelty, which includes mental cruelty, in English, American, 
Canadian and Australian cases, has observed that: (SCC pp. 545-46, 
paras 99-100)
“99. … The 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 deﬁ nition is almost impossible. What is cruelty in one 
case may not amount to cruelty in the other case. The
concept 
of cruelty diﬀ ers from person to person depending upon his 
upbringing, level of sensitivity, educational, family and cultural 
background, ﬁ nancial 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 
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
878 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
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 ﬁ xed 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….”
(emphasis supplied)
7. We would like to emphasize that an element of subjectivity has to 
be applied albeit, what constitutes cruelty is objective. Therefore, what is 
cruelty for a woman in a given case may not be cruelty for a man, and a 
relatively more elastic and broad approach is required when we examine a 
case in which a wife seeks divorce. Section 13(1) of the Act of 1955 sets 
contours and rigours for grant of divorce at the instance of both the parties. 
Historically, the law of divorce was predominantly built on a conservative 
canvas based on the fault theory. Preservation of marital sanctity from a 
societal perspective was considered a prevailing factor. With the adoption of 
a libertarian attitude, the grounds for separation or dissolution of marriage 
have been construed with latitudinarianism.
8. Even with such a liberal construction of matrimonial legislations, 
the socio-economic stigma and issues attached to a woman due to divorce or 
separation are raised. Justice O.Chinnappa Reddy, in his concurring opinion 
in Reynold Rajamani and Another v.Union
of India and Another, (1982) 2 
SCC 474 (see paragraph 14), took note of the position of women in a marital 
relationship and the consequent social and economic inequalities faced by 
the female spouse in view of divorce. The resultant stigmatization hinders 
societal reintegration, making a woman divorcee socially and economically 
dependent. Courts must adopt a holistic approach and endeavor to secure 
some measure of socio-economic independence, considering the situation, 
case and persons involved. An empathetic and contextual construction of 
the facts may be adopted, to avert the possibilities of perpetuating trauma - 
mental and sometimes even physical - on the vulnerable party. It is needless 
to say that the courts will be guided by the principles of equity and may 
consider balancing the rights of the parties. The Court, while applying these 
provisions, must adopt ‘social-context thinking’, cognisant of the social 
and economic realities, as well as the status and background of the parties.
879
9. This concept of “social justice adjudication” has been elaborately 
dealt with by this Court in Badshah v. Urmila Badshah Godse and Another, 
(2014) 1 SCC 188:
“14. Of late, in this very direction, it is emphasised that the courts 
have to adopt diﬀ erent approaches in “social justice adjudication”, 
which is also known as “social context adjudication” as mere 
“adversarial approach” may not be very appropriate. There are number 
of social justice legislations giving special protection and beneﬁ ts to 
vulnerable groups in the society. Prof. Madhava Menon describes it 
eloquently:
“It is, therefore, respectfully submitted that ‘social context 
judging’ is essentially the application of equality jurisprudence 
as evolved by Parliament and the Supreme Court in myriad 
situations presented before courts where unequal parties 
are pitted in adversarial proceedings and where courts are 
called upon to dispense equal justice. Apart from the social-
economic inequalities accentuating the disabilities of the poor 
in an unequal ﬁ ght, the adversarial process itself operates to 
the disadvantage of the weaker party. In such a situation, the 
Judge has to be not only sensitive to the inequalities of parties 
involved but also positively inclined to the weaker party if the 
imbalance were not to result in miscarriage of justice. This result 
is achieved by what we call social context judging or social 
justice adjudication.” [ Keynote address on “Legal Education in 
Social
Context” delivered at National Law University, Jodhpur 
on October 12, 2005, available on http://web.archive.org/
web/20061210031743/http:/www.nlujodhpur.ac.in/ceireports.
htm [last visited on 25-12-2013]]
15. The provision of maintenance would deﬁ nitely fall in this 
category which aims at empowering the destitute and achieving social 
justice or equality and dignity of the individual. While dealing with 
cases under this provision, drift in the approach from “adversarial” 
litigation to social context adjudication is the need of the hour.
16. The law regulates relationships between people. It prescribes 
patterns of behaviour. It reﬂ ects the values of society. The role of the 
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
880 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
court is to understand the purpose of law in society and to help the 
law achieve its purpose. But the law of a society is a living organism. 
It is based on a given factual and social reality that is constantly 
changing. Sometimes change in law precedes societal change and is 
even intended to stimulate it. In most cases, however, a change in law 
is the result of a change in social reality. Indeed, when social reality 
changes, the law must change too. Just as change in social reality is 
the law of life, responsiveness to change in social reality is the life of 
the law. It can be said that the history of law is the history of adapting 
the law to society’s changing needs. In both constitutional and 
statutory interpretation, the court is supposed to exercise discretion 
in determining the proper relationship between the subjective and 
objective purposes of the law.
××× 
××× 
×××
18. The court as the interpreter of law is supposed to supply 
omissions, correct uncertainties, and harmonise results with justice 
through a method of free decision — libre recherché scientiﬁ que i.e. 
“free scientiﬁ c research”. We are of the opinion that there is a non-
rebuttable presumption that the legislature while making a provision 
like Section 125 CrPC, to fulﬁ l its constitutional duty in good faith, 
had always intended to give relief to the woman becoming “wife” 
under such circumstances. This approach is particularly needed while
deciding the issues relating to gender justice. We already have examples 
of exemplary eﬀ orts in this regard. Journey from Shah Bano [Mohd. 
Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC 
(Cri) 245 : AIR 1985 SC 945] to Shabana Bano [Shabana Bano v. 
Imran Khan, (2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010) 1 
SCC (Cri) 873 : AIR 2010 SC 305] guaranteeing maintenance rights 
to Muslim women is a classical example.”
(Emphasis supplied)
10. On the question of burden in a petition for divorce, burden of proof 
lies on the petitioner. However, the degree of probability is not one beyond 
reasonable doubt, but of preponderance.
881
11. In Dr. N.G. Dastane v. Mrs. S. Dastane, (1975) 2 SCC 326, it 
was held: 
“25. Proof beyond reasonable doubt is proof by a higher standard 
which generally governs criminal trials or trials involving inquiry into 
issues of a quasi-criminal nature. A criminal trial involves the liberty 
of the subject which may not be taken away on a mere preponderance 
of probabilities. If the probabilities are so nicely balanced that a 
reasonable, not a vacillating, mind cannot ﬁ nd where the preponderance 
lies, a doubt arises regarding the existence of the fact to be proved and 
the beneﬁ t of such reasonable doubt goes to the accused. It is wrong 
to import such considerations in trials of a purely civil nature.
26. Neither Section 10 of the Act which enumerates the grounds on 
which a petition for judicial separation may be presented nor Section 
23 which governs the jurisdiction of the court to pass a decree in any 
proceeding under the Act requires that the petitioner must prove his 
case beyond a reasonable doubt. Section 23 confers on the court the 
power to pass a decree if it is “satisﬁ ed” on matters mentioned in 
clauses (a) to (e) of the section. Considering that proceedings under 
the Act are essentially of a civil nature, the word “satisﬁ ed” must 
mean “satisﬁ ed on a preponderance of probabilities” and not “satisﬁ ed 
beyond a reasonable doubt”. Section 23 does not alter the standard of 
proof in civil cases.
27. The misconception regarding the standard of proof in
matrimonial 
cases arises perhaps from a loose description of the respondent›s 
conduct in such cases as constituting a “matrimonial oﬀ ence”. Acts of 
a spouse which are calculated to impair the integrity of a marital union 
have a social signiﬁ cance. To marry or not to marry and if so whom, 
may well be a private aﬀ air but the freedom to break a matrimonial 
tie is not. The society has a stake in the institution of marriage and 
therefore the erring spouse is treated not as a mere defaulter but as an 
oﬀ ender. But this social philosophy, though it may have a bearing on 
the need to have the clearest proof of an allegation before it is accepted 
as a ground for the dissolution of a marriage, has no bearing on the 
standard of proof in matrimonial cases.” 
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
882 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
12. While quoting the aforesaid decision with respectful approval, 
we would like to clarify that the decision rendered in Bipin Chander 
Jaisinghbhai Shah v. Prabhawati1, 1956 SCR 838, is not a proposition 
to hold that the proof required from a petitioner in a matrimonial case 
alleging cruelty is of beyond reasonable doubt, and not of preponderance 
of probability. The Court in Bipin Chander (supra) was dealing with a case 
of desertion, and therefore, more onus was ﬁ xed on the person who asserts 
it. The Court is not deciding and adjudicating an oﬀ ence, when a petition 
for divorce is a civil remedy. 
13. Though Section 23(1)2 of the Act of 1955 speaks of condonation of 
cruelty by the petitioner in a divorce petition ﬁ led on the ground of cruelty, 
and thus non-suiting a decree of divorce, it has to be seen in context with 
the position of a man and woman in a marital relationship. In other words, 
Section 23(1) of the Act of 1955 is a word of caution to check cases of abuse 
and misuse of law to get relief. To elaborate, due to her unenviable position, 
a wife may not be in a state to raise her voice and express her dissent, which 
cannot be construed as a passive consent.
1 
This judgment has been quoted with approval by a ﬁ ve Judge Bench of this Court 
in Lachman Utamchand Kirpalani v. Meena alias Mota, (1964) 4 SCR 331, which 
relates to ‘desertion’, whereas the present case involves ‘cruelty’.
2 
23. Decree in
proceedings. – (1) In any proceeding under this Act, whether defended 
or not, if the court is satisﬁ ed that –

(a) any of the grounds for granting relief exists and the petitioner except in cases where 
the relief is sought by him on the ground speciﬁ ed in sub-clause (a), sub-clause (b) or 
sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or 
her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground speciﬁ ed in clause (i) of sub-section 
(1) of section 13, the petitioner has not in any manner been accessory to or connived 
at or condoned the act or acts complained of, or where the ground of the petition is 
cruelty the petitioner has not in any manner condoned the cruelty, and

(bb) when a divorce is sought on the ground of mutual consent, such consent has not 
been obtained by force, fraud or undue inﬂ uence, and

(c) the petition (not being a petition presented under section 11) is not presented or 
prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, 
and

(e) there is no other legal ground why relief should not be granted, then, and in such a 
case, but not otherwise, the court shall decree such relief accordingly.
883
14. Section 23(2)3 of the Act of 1955 postulates that the court before 
granting any relief under the Act shall, in the ﬁ rst instance, where it is 
possible in the nature and circumstances of the case, make every endeavour 
to bring about reconciliation between the parties. The proviso carves out 
certain exceptions with which we are not concerned. This aspect is also 
referred to in sub-section (3)4 of Section 23. The object and purpose of these 
provisions is to check any party taking advantage of social and economic 
inequalities between the sexes given the fact that on many occasions a 
divorce may solve one problem, but create another when the woman is 
separated both socially and economically. Keeping these aspects in mind, 
recently this Court in Sivasankaran v. Santhimeenal, 2021 (10) SCALE 
477, while exercising the power under Article 142 of the Constitution of 
India, had highlighted various facets which have to be kept in mind while 
granting divorce:
“6. The ground which is often taken to oppose such a decree of 
divorce, apart from the absence of legislative mandate, is that the 
very institution of marriage is distinctly understood in diﬀ erent 
countries. Under the Hindu Law, it is sacramental in character 
and is supposed to be an eternal union of two people - society at 
large does not accept divorce, given the heightened importance of 
marriage as a social institution in India. Or at least, it is far more 
diﬃ  cult for women to retain social
acceptance after a decree of 
divorce. This, coupled with the law’s failure to guarantee economic 
3 
 S.23(2) – Before proceeding to grant any relief under this Act, it shall be the duty of 
the court in the ﬁ rst instance, in every case where it is possible so to do consistently 
with the nature and circumstances of the case, to make every endeavour to bring about 
a reconciliation between the parties:

Provided that nothing contained in this sub-section shall apply to any proceeding 
wherein relief is sought on any of the grounds speciﬁ ed in clause (ii), clause (iii), 
clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.
4 
 S.23(3) – For the purpose of aiding the court in bringing about such reconciliation, 
the court may, if the parties so desire or if the court thinks it just and proper so to do, 
adjourn the proceedings for a reasonable period not exceeding ﬁ fteen days and refer 
the matter to any person named by the parties in this behalf or to any person nominated 
by the court if the parties fail to name any person, with directions to report to the 
court as to whether reconciliation can be and has been, eﬀ ected and the court shall in 
disposing of the proceeding have due regard to the report.
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
884 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
and ﬁ nancial security to women in the event of a breakdown of 
marriage; is stated to be the reason for the legislature’s reluctance 
to introduce irretrievable breakdown as a ground for divorce - even 
though there may have been a change in social norms over a period 
of time. Not all persons come from the same social background, and 
having a uniform legislative enactment is thus, stated to be diﬃ  cult. 
It is in these circumstances that this court has been exercising its 
jurisdiction, despite such reservations, under Article 142 of the 
Constitution of India.
7. A marriage is more than a seemingly simple union between 
two individuals. As a social institution, all marriages have legal, 
economic, cultural, and religious ramiﬁ cations. The norms of a 
marriage and the varying degrees of legitimacy it may acquire are 
dictated by factors such as marriage and divorce laws, prevailing 
social norms, and religious dictates. Functionally, marriages are seen 
as a site for the propagation of social and cultural capital as they 
help in identifying kinship ties, regulating sexual behaviour, and 
consolidating property and social prestige. Families are arranged 
on the idea of a mutual expectation of support and amity which is 
meant to be experienced and acknowledged amongst its members. 
Once this amity breaks apart, the results can be highly devastating 
and stigmatizing. The primary eﬀ ects of such breakdown are felt 
especially
by women, who may ﬁ nd it hard to guarantee the same 
degree of social adjustment and support that they enjoyed while they 
were married.”
15. Secondly, the court must also keep in mind that the home which is 
meant to be a happy and loveable place to live, becomes a source of misery 
and agony where the partners ﬁ ght. When there are children they become 
direct victims of the said ﬁ ghts, though they may practically have no role in 
the breakdown of marriage. They suﬀ er irreparable harm especially when 
the couple at loggerheads, remain unmindful and unconcerned about the 
psychological and mental impact it has on her/him. Way back in 1982, this 
Court in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 
2 SCC 544, observed:
885
“29…. A broken home, however, has a diﬀ erent tale to tell for the 
children. When parents fall out and start ﬁ ghting, the peace and 
happiness of home life are gone and the children become the worst 
suﬀ erers. It is indeed sad and unfortunate that parents do not realise the 
incalculable harm they may do to their children by ﬁ ghting amongst 
themselves. The husband and the wife are the persons primarily 
responsible for bringing the children into this world and the innocent 
children become the worst victims of any dispute between their father 
and the mother. Human beings with frailties common to human nature, 
may not be in a position to rise above passion, prejudice and weakness. 
Mind is, indeed, a peculiar place and the working of human mind is 
often inscrutable. For very many reasons it may unfortunately be not 
possible for the husband and wife to live together and they may be 
forced to part company. Any husband and wife who have irreconcilable 
diﬀ erences, forcing them to part company, should, however, have sense 
enough to understand and appreciate that they have their duties towards 
their children. In the interest of the children whom they have brought 
into existence and who are innocent, every husband and wife should 
try to compose their diﬀ erences. Even when any husband and wife 
are not in a position to reconcile their diﬀ erences and are compelled 
to part, they should part in a way as will cause least possible mischief 
to the children.
(emphasis supplied)
16. We have very little to say on facts, especially upon hearing the 
learned counsels at the Bar. They do speak for themselves. The marriage 
was solemnized in the year 2002. It fell into rough weather after the birth 
of their child. Disputes started between the parties from 2006 onwards. The 
appellant–Wife registered a complaint under Section 498A of Indian Penal 
Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The 
respondent-Husband had questioned the character of the appellant-Wife. A 
plea was also taken in the counter aﬃ  davit ﬁ led in the petition for divorce. 
Incidentally, it was contended that it was she who had ﬂ ed the matrimonial 
home. The respondent-Husband also demanded a medical examination of the 
appellant–Wife, alleging she was living in adultery and had given birth to a 
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
886 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
child during the period of non-cohabitation. The said request was nulliﬁ ed 
by the Order of the High Court.
17. For a decade and half, the parties have been living separately. As 
fairly stated at the Bar, the marriage does not survive any longer, and the 
relationship was terminated otherwise except by a formal decree of divorce. 
The status quo continues, awaiting an approval from this Court. 
18. The aforesaid facts would certainly make out a case for divorce 
and thus, the ratio laid down by a Constitution Bench of this Court in Shilpa 
Sailesh v. Varun Sreenivasan, 2023 (6) SCALE 402 would be applicable 
on all fours:
“26. V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], which was 
pronounced in 1993, 18 years after the decision in N.G. Dastane 
[(1975) 2 SCC 326], gives a life-like expansion to the term ‘cruelty’. 
This case was between a husband who was practicing as an Advocate, 
aged about 55 years, and the wife, who was the Vice President in a 
public sector undertaking, aged about 50 years, having two adult 
children - a doctor by profession and an MBA degree holder working 
abroad, respectively. Allegations of an adulterous course of life, lack 
of mental equilibrium and pathologically suspicious character were 
made against each other. This Court noticed that the divorce petition 
had remained pending for more than eight years, and in spite of the 
directions given by this Court, not much progress had been made. 
It was
highlighted that cruelty contemplated under Section 13(1)
(i-a) of the Hindu Marriage Act is both mental and physical, albeit 
a comprehensive deﬁ nition of what constitutes cruelty would be 
most diﬃ  cult. Much depends upon the knowledge and intention of 
the defending spouse, the nature of their conduct, the character and 
physical or mental weakness of the spouses, etc. The sum total of 
the reprehensible conduct or departure from normal standards of 
conjugal kindness that causes injury to health, or an apprehension of 
it, constitutes cruelty. But these factors must take into account the 
temperament and all other speciﬁ c circumstances in order to decide 
that the conduct complained of is such that a petitioner should not 
be called to endure it. It was further elaborated that cruelty, mental
887
or physical, may be both intentional or unintentional. Matrimonial 
obligations and responsibilities vary in degrees. They diﬀ er in each 
household and to each person, and the cruelty alleged depends upon 
the nature of life the parties are accustomed to, or their social and 
economic conditions. They may also depend upon the culture and 
human values to which the spouses assign signiﬁ cance. There may 
be instances of cruelty by unintentional but inexcusable conduct of 
the other spouse. Thus, there is a distinction between intention to 
commit cruelty and the actual act of cruelty, as absence of intention 
may not, in a given case, make any diﬀ erence if the act complained 
of is otherwise regarded as cruel. Deliberate and wilful intention, 
therefore, may not matter. Paragraph 16 of the judgment in V. Bhagat 
(supra) reads as under:
“16. Mental cruelty in Section 13(1)(i-a) can broadly be deﬁ ned 
as that conduct which inﬂ icts upon the other party such mental 
pain and suﬀ ering 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 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.”
××× 
××× 
×××
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]
888 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
33. Having said so, we wish to clearly state that grant of divorce on the 
ground of irretrievable breakdown of marriage by this Court is not a 
matter of right, but a discretion which is to be exercised with great care 
and caution, keeping in mind several factors ensuring that ‘complete 
justice’ is done to both parties. It is obvious that this Court should be 
fully convinced and satisﬁ ed that the marriage is totally unworkable, 
emotionally dead and beyond salvation and, therefore, dissolution 
of marriage is the right solution and the only way forward. That the 
marriage has irretrievably broken down is to be factually determined 
and ﬁ rmly established. For this, several factors are to be considered 
such as the period of time the parties had cohabited after marriage; 
when the parties had last cohabited; the nature of allegations made 
by the parties against each other and their family members; the orders 
passed in the legal proceedings from time to time, cumulative impact 
on the personal relationship; whether, and how many attempts were 
made to settle the disputes by intervention of the court or through 
mediation, and when the last attempt was made, etc. The period of 
separation should be suﬃ  ciently long, and anything above six years 
or more will be a relevant factor. But these facts have to be evaluated 
keeping in view the economic and social status of the parties, including 
their educational qualiﬁ cations,
whether the parties have any children, 
their age, educational qualiﬁ cation, and whether the other spouse and 
children are dependent, in which event how and in what manner the 
party seeking divorce intends to take care and provide for the spouse 
or the children. Question of custody and welfare of minor children, 
provision for fair and adequate alimony for the wife, and economic 
rights of the children and other pending matters, if any, are relevant 
considerations. We would not like to codify the factors so as to curtail 
exercise of jurisdiction under Article 142(1) of the Constitution of 
India, which is situation speciﬁ c. Some of the factors mentioned can 
be taken as illustrative, and worthy of consideration.” 
19. The Trial Court and the High Court adopted a hyper-technical 
and pedantic approach in declining the decree of divorce. It is not as if 
the respondent-Husband is willing to live with the appellant–Wife. The 
allegations made by him against her are as serious as the allegations made
889
by her against him. Both the parties have moved away and settled in their 
respective lives. There is no need to continue the agony of a mere status 
without them living together. 
20. For the reasons aforesaid, we are inclined to set aside the judgment 
of the Trial Court as conﬁ rmed by the High Court of Chhattisgarh in F.A. 
(M) No. 115 of 2011. Accordingly, they are set aside and the appeal stands 
allowed by granting a decree of divorce. 
21. No costs. 
Headnotes prepared by:  
Appeal allowed.
Ankit Gyan
SMT. ROOPA SONI v. KAMALNARAYAN SONI
[M. M. SUNDRESH, J.]