Supreme Court of India

Naveen Kohli vs Neelu Kohli on 21 March, 2006

Equivalent citations: AIR 2006 SUPREME COURT 1675, 2006 AIR SCW 1550, (2006) 40 ALLINDCAS 1 (SC), 2006 (40) ALLINDCAS 1, (2006) 2 CHANDCRIC 75, (2006) 4 ALLMR 190 (SC), (2006) 2 CTC 510 (SC), (2006) 3 JCR 128 (SC), (2006) 128 DLT 360, 2006 (4) SRJ 567, 2006 (2) ALL CJ 1096, 2006 (2) CTC 510, 2006 (3) SCALE 252, 2006 (2) KER LT 29, 2006 (4) SCC 558, 2006 ALL CJ 2 1096, (2006) ILR (KANT) 1797, (2006) 4 MAH LJ 242, (2006) MATLR 332, (2006) 3 GUJ LR 2182, (2006) 2 MAD LJ 241, (2006) 3 MPLJ 1, (2006) 34 OCR 91, (2006) 3 RAJ LW 1892, (2006) 3 SCJ 673, (2006) 2 SUPREME 627, (2006) 2 RECCIVR 290, (2006) 3 SCALE 252, (2006) 63 ALL LR 313, (2006) 2 ICC 577, (2006) 1 WLC(SC)CVL 690, (2006) 1 DMC 489, (2006) 2 CIVILCOURTC 226, (2006) 1 HINDULR 497, (2006) 2 ALL WC 1057, (2006) 2 MAD LW 606, (2006) 2 CURCC 26, MANU/SC/1387/2006, 2006 (2) KLT SN 41 (SC), (2006) 5 BOM CR 240

Author:
Dalveer Bhandari

Bench:
B.N. Agrawal
,
A.K. Mathur
,
Dalveer Bhandari

CASE NO.:
Appeal (civil) 812 of 2004

PETITIONER:
Naveen Kohli

RESPONDENT:
Neelu Kohli

DATE OF JUDGMENT: 21/03/2006

BENCH:
B.N. AGRAWAL,A.K. MATHUR & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T

Dalveer Bhandari, J

This appeal is directed against the judgment of the
Allahabad High Court dated 07.07.2003 passed by the
Division Bench in First Appeal No.323 of 2003.

The appellant and the respondent are husband and
wife. The appellant has filed a petition under the
Hindu
Marriage Act, 1955
for divorce. The Family Court after
comprehensively dealing with the matter ordered
cancellation of marriage between the parties under

Section 13
of the Hindu Marriage Act which was
solemnized on 20.11.1975 and directed the appellant to
pay Rs.5 lacs as her livelihood allowance. The appellant
deposited the amount as directed.

The respondent aggrieved by the said judgment
preferred First Appeal before the Division Bench of the
Allahabad High Court. After hearing the parties the
appeal was allowed and the decree passed by the Family
Court, Kanpur City seeking divorce and annulment of the
marriage was dismissed.

The appellant aggrieved by the said judgment of the
High Court had preferred special leave petition under

Article 136
of the Constitution of India. This Court
granted special leave to appeal to the appellant.

Brief facts which are necessary to dispose of this
appeal are recapitulated.

The appellant, Naveen Kohli got married to Neelu
Kohli on 20.11.1975. Three sons were born out of the
wedlock of the parties. The appellant constructed three
factories with the intention of providing a separate
factory for his three sons. He also constructed bungalow
no.7/36 A for their residence. The parties got all their
three sons admitted and educated in a public school in
Nanital. According to the appellant, the respondent is
bad tempered and a woman of rude behaviour. After
marriage, she started quarrelling and misbehaving with
the appellant and his parents and ultimately, the
appellant was compelled to leave the parental residence
and started to reside in a rented premises from May
1994. According to the version of the appellant, the
respondent in collusion with her parents got sufficient
business and property transferred in her name.

The appellant alleged that in the month of May
1994, when he along with the respondent and their
children visited Bombay to attend the golden jubilee
marriage anniversary of his father-in-law, he noticed that
the respondent was indulging in an indecent manner and
found her in a compromising position with one Biswas
Rout. Immediately thereafter, the appellant started living
separately from the respondent since May 1994. The
appellant suffered intense physical and mental torture.

According to the appellant, the respondent had
withdrawn Rs.9,50,000/- from the Bank Account of the
appellant and deposited the same in her account.

The appellant alleged that the respondent got a false
first information report registered against him under

Sections 420
/
/
and
IPC which was registered
as Case No.156 of 1995. According to him, the
respondent again got a case under
Sections 323
/
I.P.C. registered in the police station Panki, Kanpur City
and efforts were made to get the appellant arrested.

The appellant filed a Civil Suit No. 1158/1996
against the respondent. It was also reported that the
appellant was manhandled at the behest of the
respondent and an FIR No.156 of 1996 was filed by the
eldest son at the behest of the respondent against the
appellant in police station, Panki complaining that the
appellant had physically beaten her son, Nitin Kohli.

The respondent in her statement before the Trial
Court had mentioned that she had filed an FIR against
the appellant under
Section 420
/
IPC at the Police
Station, Kotwali and the respondent had gone to the
extent of filing a caveat in the High Court in respect of
the said criminal case so that the appellant may not
obtain an order from the High Court against her filing the
said FIR.

In the same statement, the respondent had
admitted that she had filed an FIR No.100/96 at the
Police Station, Kohna under
Section 379
/
IPC against
the appellant.

The respondent had also filed a complaint against
the appellant and his mother under
Sections
498A
/
/
/
IPC at Police Station, Kohna.

The respondent in her statement had admitted that
she had opposed the bail of the appellant in the criminal
case filed at the Police Station, Kotwali on the basis of
legal advice. In that very statement she further admitted
that after the police had filed final report in both the
criminal cases relating to Police Station, Kotwali and
Police Station, Kohna, she had filed protest petition in
those cases.

This clearly demonstrates the respondent's deep
and intense feeling of revenge. The respondent in her
statement had also admitted that she had filed a
complaint in the Women Cell, Delhi in September 1997.
According to the appellant, the respondent had filed a
complaint no.125 of 1998 against the appellant's lawyer
and friend alleging criminal intimidation which was
found to be false.

According to the appellant, the respondent filed a
forged complaint under
sections 397
/
of the
Companies Act before the Company Law Board, New
Delhi and in the affidavit of the respondent she stated
that the appellant was immoral, alcoholic, and was
having affairs with numerous girls since marriage. She
also called him a criminal, infidel, forger and her
manager to denigrate his position from the proprietor to
an employee of her company.

The appellant also mentioned that the respondent
filed a false complaint in Case No.1365 0f 1988 using all
kinds of abuses against the appellant.

On 8.7.1999, the respondent filed a complaint in
the Parliament Street Police Station, New Delhi and made
all efforts to ensure the appellant's arrest with the object
of sending him to jail. The appellant was called to the
police station repeatedly and was interrogated by the
police and only after he gave a written reply and the
matter on scrutiny was found to be false, the appellant
with great difficulty was able to save himself from
imprisonment.

On 31.3.1999 the respondent had sent notice for
breaking the Nucleus of the HUF, expressly stating that
the Family Nucleus had been broken with immediate
effect and asking for partition of all the properties and
assets of the HUF and stating that her share should be
given to her within 15 days. According to the appellant,
this act of the respondent clearly broke all relations
between the appellant and the respondent on 31.3.1999.

The respondent had filed a complaint against the
appellant under
Section 24
of the Hindu Marriage Act
directing payment of maintenance during the pendency
of the case. This was rejected by the Trial Court and she
later filed an appeal in the High Court.

The appellant had deposited Rs.5 lacs on Court's
directions but that amount was not withdrawn by the
respondent. On 22.1.2001 the respondent gave an
affidavit before the High Court and got non-bailable
warrants issued against the appellant. Consequently,
the appellant was harassed by the police and ultimately
he got the arrest order stayed by the High Court. The
respondent admitted in her statement that she got the
advertisement published in the English National
Newspaper 'Pioneer'. The advertisement reads as under :

PUBLIC NOTICE
Be it known to all that Mr. Naveen
Kohli S/o Mr. Prem Kumar Kohli was
working with my Proprietorship firm
as Manager. He has abandoned his
job since May 1996 and has not
resumed duties.

He is no more in the employment of
the firm. Any Body dealing with him
shall be doing so at his own risk, his
authority to represent the firm has
been revoked and none should deliver
him orders, cash cheques or drafts
payable to the firm.

NEELU KOHLI
Sole Proprietor
M/s NITIN RUBBERS
152-B, Udyog Nagar,
Kanpur

The respondent in her statement before the Court
did not deny the contents of the affidavit but merely
mentioned that she did not remember whether she called
the appellant a criminal, infidel and a forger in the
affidavit filed before the Company Law Board.

The respondent did not deny her using choicest
abuses against the appellant but merely stated that she
did not remember.

The respondent also filed a contempt petition in the
Company Law Board against its order of the Company
Law Board dated 25.9.2000 in order to try and get the
appellant thrown out of the little apartment and urged
that the appellant be sent to jail.

Before the Family Court, the respondent stated
about solemnization of the marriage with the appellant
on 20.11.1975. In her written statement she had denied
the fact that she was either a rude or a quarrelsome lady.
The respondent also denied that she had mentally,
physically and financially harassed and tortured the
appellant. She also stated that she never refused
cohabitation with the appellant. She also denied
indulging in any immoral conduct. She averred in the
written statement that the appellant has been immorally
living with a lady named 'Shivanagi'.

The appellant and the respondent filed a number of
documents in support of their respective cases. On the
basis of the pleadings and the documents, the Additional
Principal Judge of Family Court framed the following
issues :-

"1. Whether the respondent treated the
plaintiff with cruelty by registering
various criminal cases, getting the news
published and initiating civil
proceedings?

2. Whether the defendant treated the
plaintiff with cruelty by her objectionable
behaviour as stated in the plaint?

3. Whether respondent has made false
allegation against the plaintiff? If yes, its
impact?

Whether in the presence of plaintiff, the
defendant displayed her behaviour with
Dr. Viswas Rout which comes in the
category of immorality as has been stated
in para 11 of the plaint? If yes, its
impact?

4. Whether the petition is not maintainable
on the basis of preliminary objections 1
to 3 of the written statement?

5. Whether plaintiff has kept Smt. Shivanagi
with him as his concubine? If yes, its
impact?

6. Whether suit of the plaintiff is barred by
the provisions of
Section 11
, C.P.C.?

7. Whether plaintiff is entitled to get the
decree of dissolution of marriage against
defendant?

8. Whether plaintiff is entitled to get any
other relief?"

Issues number 1 & 2 relate to the term 'Cruelty' and
Issue no. 3 is regarding impact of false allegations levelled
by the respondent against the appellant. All these three
issues were decided in favour of the appellant and against
the respondent. The learned Trial Court came to a definite
conclusion that the respondent had filed a very large
number of cases against the appellant and got him
harassed and tortured by the police. It also declared him
an employee of the factory of which the respondent is a
proprietor by getting an advertisement issued in the
newspaper. According to findings of the Trial Court, the
appellant was mentally, physically and financially
harassed and tortured by the respondent.

The Trial Court framed specific issue whether the
appellant had kept Smt. Shivangi with him as his
concubine. This allegation has been denied by the
appellant. The respondent had failed to produce any
witness in respect of the aforesaid allegation and was
consequently not able to prove the same. The Trial
Court stated that both parties have levelled allegations of
character assassination against each other but failed to
prove them.

The Trial Court stated that many a times efforts
have been made for an amicable settlement, but on the
basis of allegations which have been levelled by both the
parties against each other, there is no cordiality left
between the parties and there is no possibility of their
living together. According to the Trial court, there was no
possibility to reconnect the chain of marital life between
the parties. Hence, the Trial Court found that there is no
alternative but to dissolve the marriage between the
parties. The Trial Court also stated that the respondent
had not filed any application for allowing permanent
maintenance and Stridhan but, in the interest of justice,
the Trial Court directed the appellant to deposit
Rs.5,00,000/- toward permanent maintenance of the
respondent. The Trial Court also ordered that a decree of
dissolution of marriage shall be effective after depositing
the payment of Rs.5,00,000/- by the appellant.
Admittedly, the appellant had immediately deposited the
said amount.

The respondent, aggrieved by the judgment of the
Principal Judge, Family Court, Kanpur City, preferred the
first appeal before the High Court, which was disposed of
by a Division Bench of the Allahabad High Court.

According to the High Court, the Trial Court had not
properly appreciated and evaluated the evidence on
record. According to the High Court, the appellant had
been living with one Shivangi. As per the High Court, the
fact that on Trial Court's directions the appellant
deposited the sum of Rs.5,00,000/- within two days after
the judgment which demonstrated that the appellant was
financially well off. The Division Bench of the High Court
held that actions of the appellant amounted to
misconduct, un-condonable for the purpose of
Section
13(1)(a)
of the Hindu Marriage Act. The appeal was
allowed and the Trial Court judgment has been set aside.
The suit filed by the appellant seeking a decree of divorce
was also dismissed.

The appellant preferred a Special Leave Petition
before this Court. We have carefully perused the
pleadings and documents on record and heard the
learned counsel appearing for the parties at length.

Both the parties have levelled allegations against
each other for not maintaining the sanctity of marriage
and involvement with another person. According to the
respondent, the appellant is separately living with
another woman, 'Shivanagi'. According to the appellant,
the respondent was seen indulging in an indecent
manner and was found in compromising position with
one Biswas Rout. According to the findings of the Trial
Court both the parties failed to prove the allegations
against each other. The High Court has of course
reached the conclusion that the appellant was living with
one 'Shivanagi' for a considerable number of years. The
fact of the matter is that both the parties have been living
separately for more than 10 years. Number of cases
including criminal complaints have been filed by the
respondent against the appellant and every effort has
been made to harass and torture him and even to put the
appellant behind the bars by the respondent. The
appellant has also filed cases against the respondent.

We would like to examine the facts of the case in the
light of the settled position of law which has been
crystallized by a series of judgments.

In the light of facts and circumstances of this case
we would also like to examine the concept of Irretrievable
Breakdown of Marriage particularly with reference to
recently decided cases.

Impact of Physical and Mental Cruelty in Matrimonial
Matters.

The petition for divorce was filed primarily on the
ground of cruelty. It may be pertinent to note that, prior
to the 1976 amendment in the
Hindu Marriage Act, 1955

cruelty was not a ground for claiming divorce under the

Hindu Marriage Act
. It was only a ground for claiming
judicial separation under
Section 10
of the Act. By 1976
Amendment, the Cruelty was made ground for divorce.
The words which have been incorporated are "as to cause
a reasonable apprehension in the mind of the petitioner
that it will be harmful or injurious for the petitioner to
live with the other party". Therefore, it is not necessary
for a party claiming divorce to prove that the cruelty
treatment is of such a nature as to cause an
apprehension  reasonable apprehension that it will be
harmful or injurious for him or her to live with the other
party.

The Court had an occasion to examine the 1976
amendment in the case of
N.G. Dastane v. S. Dastane

[(1975) 2 SCC 326: AIR 1975 SC 1534], The Court noted
that "....whether the conduct charges as cruelty is of
such a character as to cause in the mind of the petitioner
a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent".

We deem it appropriate to examine the concept of
'Cruelty' both in English and Indian Law, in order to
evaluate whether the appellant's petition based on the
ground of cruelty deserves to be allowed or not.

D. Tolstoy in his celebrate book "The Law and
Practice of Divorce and Matrimonial Causes" (Sixth
Edition, p. 61) defined cruelty in these words:

"Cruelty which is a ground for
dissolution of marriage may be
defined as willful and unjustifiable
conduct of such a character as to
cause danger to life, limb or health,
bodily or mental, or as to give rise to
a reasonable apprehension of such a
danger."

The concept of cruelty in matrimonial matters was
aptly discussed in the English case in Bertram v. Bertram
[(1944) 59, 60] per Scott, L.J. observed:

"Very slight fresh evidence is needed
to show a resumption of the cruelty,
for cruelty of character is bound to
show itself in conduct and
behaviour. Day in and day out,
night in and night out."

In Cooper vs. Cooper [(1950) WN 200 (HL)], it was
observed as under:

"It is true that the more serious the
original offence, the less grave need
be the subsequent acts to constitute
a revival."

Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950)
2 All ER 398, 403] observed as under:

"If the door of cruelty were opened
too wide, we should soon find
ourselves granting divorce for
incompatibility of temperament.
This is an easy path to tread,
especially in undefended cases. The
temptation must be resisted lest we
slip into a state of affairs where the
institution of marriage itself is
imperiled."

"In England, a view was at one time taken that the
petitioner in a matrimonial petition must establish his
case beyond a reasonable doubt but in Blyth v. Blyth
[(1966) 1 All ER 524, 536], the House of Lords held by a
majority that so far as the grounds of divorce or the bars
to divorce like connivance or condonation are concerned,
"the case like any civil case, may be proved by a
preponderance of probability".

The High Court of Australia in
Wright v. Wright

[(1948) 77 CLR 191, 210], has also taken the view that
"the civil and not the criminal standard of persuasion
applies to matrimonial causes, including issues of
adultery". The High Court was therefore in error in
holding that the petitioner must establish the charge of
cruelty "beyond reasonable doubt". The High Court adds
that "This must be in accordance with the law of
evidence", but we are not clear as to the implications of
this observation."

Lord Pearce observed:

"It is impossible to give a
comprehensive definition of cruelty,
but when reprehensible conduct or
departure from the normal
standards of conjugal kindness
causes injury to health or an
apprehension of it, it is, I think,
cruelty if a reasonable person, after
taking due account of the
temperament and all the other
particular circumstances would
consider that the conduct
complained of is such that this
spouse should not be called on to
endure it.

* * *

I agree with Lord Merriman
whose practice in cases of mental
cruelty was always to make up his
mind first whether there was injury
or apprehended injury to health. In
the light of that vital fact the court
has then to decide whether the sum
total of the reprehensible conduct
was cruel. That depends on
whether the cumulative conduct
was sufficiently weighty to say that
from a reasonable person's point of
view, after a consideration of any
excuse which this respondent might
have in the circumstances, the
conduct is such that this petitioner
ought not to be called on to endure
it.

* * *
The particular circumstances
of the home, the temperaments and
emotions of both the parties and
their status and their way of life,
their past relationship and almost
every circumstance that attends the
act or conduct complained of may
all be relevant."

Lord Reid in Gollins v. Gollins [1964 AC 644 : (1963)
2 All ER 966]:

"No one has ever attempted to give a
comprehensive definition of cruelty
and I do not intend to try to do so.
Much must depend on the
knowledge and intention of the
respondent, on the nature of his (or
her) conduct, and on the character
and physical or mental weaknesses
of the spouses, and probably no
general statement is equally
applicable in all cases except the
requirement that the party seeking
relief must show actual or probable
injury to life, limb or health.

The principles of law which have been crystallized
by a series of judgments of this Court are recapitulated
as under :-

In the case of
Sirajmohmedkhan
Janmohamadkhan vs. Harizunnisa Yasinkhan

reported in (1981) 4 SCC 250, this Court stated that the
concept of legal cruelty changes according to the changes
and advancement of social concept and standards of
living. With the advancement of our social conceptions,
this feature has obtained legislative recognition, that a
second marriage is a sufficient ground for separate
residence and maintenance. Moreover, to establish legal
cruelty, it is not necessary that physical violence should
be used. Continuous ill-treatment, cessation of marital
intercourse, studied neglect, indifference on the part of
the husband, and an assertion on the part of the
husband that the wife is unchaste are all factors which
lead to mental or legal cruelty.

In the case of
Sbhoba Rani vs. Madhukar Reddi

reported in (1988) 1 SCC 105, this Court had an occasion
to examine the concept of cruelty. The word 'cruelty' has
not been defined in the
Hindu Marriage Act
. It has been
used in
Section 13(1)(i)(a)
of the Act in the context of
human conduct or behaviour in relation to or in respect
of matrimonial duties or obligations. It is a course of
conduct of one which is adversely affecting the other.
The cruelty may be mental or physical, intentional or
unintentional. If it is physical, it is a question of fact and
degree. If it is mental, the enquiry must begin as to the
nature of the cruel treatment and then as to the impact
of such treatment on the mind of the spouse. Whether it
caused reasonable apprehension that it would be
harmful or injurious to live with the other, ultimately, is
a matter of inference to be drawn by taking into account
the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases
where the conduct complained of itself is bad enough and
per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted.
The absence of intention should not make any difference
in the case, if by ordinary sense in human affairs, the act
complained of could otherwise be regarded as cruelty.
Intention is not a necessary element in cruelty. The relief
to the party cannot be denied on the ground that there
has been no deliberate or wilful ill-treatment.

The cruelty alleged may largely depend upon the
type of life the parties are accustomed to or their
economic and social conditions and their culture and
human values to which they attach importance. Each
case has to be decided on its own merits.

The Court went on to observe as under :

"It will be necessary to bear in mind
that there has been marked
changed in the life around us. In
matrimonial duties and
responsibilities in particular, we find
a sea change. They are of varying
degrees from house to house or
person to person. Therefore, when a
spouse makes 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 stigmatized 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. We, the judges
and lawyers, therefore, should not
import our own notions of life. We
may not go in parallel with them.
There may be a generation gap
between us and the parties. It
would be better if we keep aside our
customs and manners. It would be
also better if we less depend upon
precedents.

Lord Denning said in Sheldon
v. Sheldon, [1966] 2 All E.R. 257
(CA) 'the categories of cruelty are not
closed'. Each case may be different.

We deal with the conduct of human
beings who are no generally similar.

Among the 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."

In the case of
V. Bhagat vs. D. Bhagat
reported in
(1994) 1 SCC 337, this Court had occasion to examine
the concept of 'mental cruelty'. This Court observed as
under:

"16. Mental cruelty in
Section
13(1)
(i-a) can broadly be defined as
that conduct which inflicts upon the
other party such mental pain and
suffering as would make it not
possible for that party to live with
the other. In other words, mental
cruelty must be of such a nature
that the parties cannot reasonably
be expected to live 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
decided 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."

The word 'cruelty' has to be understood in the
ordinary sense of the term in matrimonial affairs. If the
intention to harm, harass or hurt could be inferred by
the nature of the conduct or brutal act complained of,
cruelty could be easily established. But the absence of
intention should not make any difference in the case.
There may be instances of cruelty by unintentional but
inexcusable conduct of any party. The cruel treatment
may also result from the cultural conflict between the
parties. Mental cruelty can be caused by a party when
the other spouse levels an allegation that the petitioner is
a mental patient, or that he requires expert psychological
treatment to restore his mental health, that he is
suffering from paranoid disorder and mental
hallucinations, and to crown it all, to allege that he and
all the members of his family are a bunch of lunatics.
The allegation that members of the petitioner's family are
lunatics and that a streak of insanity runs though his
entire family is also an act of mental cruelty.
This Court in the case of
Savitri Pandey vs. Prem
Chandra Pandey
reported in (2002) 2 SCC 73, stated
that mental cruelty is the conduct of other spouse which
causes mental suffering or fear to the matrimonial life of
the other. "Cruelty", therefore, postulates a treatment of
the petitioner with such cruelty as to cause a reasonable
apprehension in his or her mind that it would be harmful
or injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be
decided on the basis of the sensitivity of the petitioner
and has to be adjudged on the basis of the course of
conduct which would, in general, be dangerous for a
spouse to live with the other.

In this case, this Court further stated as under:

"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."

In this case, this Court further stated that cruelty
can be said to be an act committed with the intention to
cause suffering to the opposite party.

This Court in the case of Gananth Pattnaik vs.
State of Orissa reported in (2002) 2 SCC 619 observed
as under:

"The concept of cruelty and its effect
varies from individual to individual,
also depending upon the social and
economic status to which such
person belongs. "Cruelty" for the
purposes of constituting the offence
under the aforesaid section need not
be physical. Even mental torture or
abnormal behaviour may amount to
cruelty and harassment in a given
case."

This Court, in the case of
Parveen Mehta vs.
Inderjit Mehta
reported in (2002) 5 SCC 706, defined
cruelty as under:

"Cruelty for the purpose of
Section
13(1)
(i-a) is to be taken as a
behaviour by one spouse towards
the other, which causes reasonable
apprehension in the mind of the
latter that it is not safe for him or
her to continue the matrimonial
relationship with the other. Mental
cruelty is a state of mind and feeling
with one of the spouses due to the
behaviour or behavioural pattern by
the other. Unlike the case of
physical cruelty, mental cruelty is
difficult to establish by direct
evidence. It is necessarily a matter
of inference to be drawn from the
facts and circumstances of the case.
A feeling of anguish, disappointment
and frustration in one spouse
caused by the conduct of the other
can only be appreciated on
assessing the attending facts and
circumstances in which the two
partners of matrimonial life have
been living. The inference has to be
drawn from the attending facts and
circumstances taken cumulatively.
In case of mental cruelty it will not
be a correct approach to take an
instance of misbehaviour in
isolation and then pose the question
whether such behaviour is sufficient
by itself to cause mental cruelty.
The approach should be to take the
cumulative effect of the facts and
circumstances emerging from the
evidence on record and then draw a
fair inference whether the petitioner
in the divorce petition has been
subject to mental cruelty due to
conduct of the other."

In this case the Court also stated that so many
years have elapsed since the spouses parted company.
In these circumstances it can be reasonably inferred that
the marriage between the parties has broken down
irretrievably.

In
Chetan Dass vs. Kamla Devi
reported in (2001)
4 SCC 250 , this Court observed that the matrimonial
matters have to be basically decided on its facts. In the
words of the Court:

"Matrimonial matters are matters of
delicate human and emotional
relationship. It demands mutual
trust, regard, respect, love and
affection with sufficient play for
reasonable adjustments with the
spouse. The relationship has to
conform to the social norms as well.
The matrimonial conduct has now
come to be governed by statute
framed, keeping in view such norms
and changed social order. It is
sought to be controlled in the
interest of the individuals as well as
in broader perspective, for
regulating matrimonial norms for
making of a well-knit, healthy and
not a disturbed and porous society.
The institution of marriage occupies
an important place and role to play
in the society, in general. Therefore,
it would not be appropriate to apply
any submission of "irretrievably
broken marriage" as a straitjacket
formula for grant of relief of divorce.
This aspect has to be considered in
the background of the other facts
and circumstances of the case."

In
Sandhya Rani vs. Kalyanram Narayanan

reported in (1994) Supp. 2 SCC 588, this Court reiterated
and took the view that since the parties are living
separately for the last more than three years, we have no
doubt in our mind that the marriage between the parties
has irretrievably broken down. There is no chance
whatsoever of their coming together. Therefore, the
Court granted the decree of divorce.

In the case of
Chandrakala Menon vs. Vipin
Menon
reported in (1993) 2 SCC 6, the parties had been
living separately for so many years. This Court came to
the conclusion that there is no scope of settlement
between them because, according to the observation of
this Court, the marriage has irretrievably broken down
and there is no chance of their coming together. This
Court granted decree of divorce.

In the case of
Kanchan Devi vs. Promod Kumar
Mittal
reported in (1996) 8 SCC 90, the parties were
living separately for more than 10 years and the Court
came to the conclusion that the marriage between the
parties had to be irretrievably broken down and there
was no possibility of reconciliation and therefore the
Court directed that the marriage between the parties
stands dissolved by a decree of divorce.

In
Swati Verma vs. Rajan Verma
reported in
(2004) 1 SCC 123, a large number of criminal cases had
been filed by the petitioner against the respondent. This
Court observed that the marriage between the parties
had broken down irretrievably with a view to restore good
relationship and to put a quietus to all litigations
between the parties and not to leave any room for future
litigation, so that they may live peacefully hereafter, and
on the request of the parties, in exercise of the power
vested in this Court under
Article 142
of the Constitution
of India, the Court allowed the application for divorce by
mutual consent filed before it under
Section 13-B
of the
Hindu Marriage Act and declared the marriage dissolved
and granted decree of divorce by mutual consent.

In Prakash Chand Sharma vs. Vimlesh [1995
Supp (4) SCC 642], the wife expressed her will to go and
live with the husband notwithstanding the presence of
the other woman but the husband was not in a position
to agree presumably because he has changed his position
by remarriage. Be that as it may, a reconciliation was
not possible.

In
V. Bhagat v. D. Bhagat
(supra), this Court
while allowing the marriage to dissolve on ground of
mental cruelty and in view of the irretrievable breakdown
of marriage and the peculiar circumstances of the case,
held that the allegations of adultery against the wife were
not proved thereby vindicating her honour and character.
This Court while exploring the other alternative observed
that the divorce petition has been pending for more than
8 years and a good part of the lives of both the parties
has been consumed in this litigation and yet, the end is
not in sight and that the allegations made against each
other in the petition and the counter by the parties will
go to show that living together is out of question and
rapprochement is not in the realm of possibility. This
Court also observed in the concluding part of the
judgment that:

"Before parting with this case, we
think it necessary to append a
clarification. Merely because there
are allegations and counter
allegations, a decree of divorce
cannot follow. Nor is mere delay in
disposal of the divorce proceedings
by itself a ground. There must be
really some extra- ordinary features
to warrant grant of divorce on the
basis of pleading (and other
admitted material) without a full
trial. Irretrievable breakdown of the
marriage is not a ground by itself.
But while scrutinising the evidence
on record to determine whether the
ground(s) alleged is/are made out
and in determining the relief to be
granted, the said circumstance can
certainly be borne in mind. The
unusual step as the one taken by us
herein can be resorted to only to
clear up an insoluable mess, when
the Court finds it in the interest of
both parties."

Again in
A. Jaychandra v. Aneel Kumar
, (2005) 2
SCC 22, a 3 judge Bench of this Court observed that the
expression "cruelty" has not been defined in the Act.
Cruelty can be physical or mental cruelty which is a
ground for dissolution of marriage may be defined as
willful and unjustifiable conduct of such character as to
cause danger to life, limb or health, bodily or mental, or
as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the
particular society to which the parties belong, their social
values, status, environment in which they live. Cruelty,
as noted above, includes mental cruelty, which falls
within the purview of a matrimonial wrong. Cruelty need
not be physical. If from the conduct of his spouse same is
established and/or an inference can be legitimately
drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other spouse,
about his or her mental welfare then this conduct
amounts to cruelty. In delicate human relationship like
matrimony, one has to see the probabilities of the case.
The concept, a proof beyond the shadow of doubt, is to be
applied to criminal trials and not to civil matters and
certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore, one
has to see what are the probabilities in a case and legal
cruelty has to be found out, not merely as a matter of
fact, but as the effect on the mind of the complainant
spouse because of the acts or omissions of the other.
Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty there may not
at the same time be direct evidence. In cases where there
is no direct evidence, Courts are required to probe into
the mental process and mental effect of incidents that are
brought out in evidence. It is in this view that one has to
consider the evidence in matrimonial disputes.

The expression 'cruelty' has been used in relation
to human conduct or human behaviour. It is the conduct
in relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which
is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it is
physical, the Court will have no problem in determining
it. It is a question of fact and degree. If it is mental, the
problem presents difficulties. First, the enquiry must
begin as to the nature of cruel treatment, second the
impact of such treatment in the mind of the spouse,
whether it caused reasonable apprehension that it would
be harmful or injurious to live with the other. Ultimately,
it is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the
complaining spouse. However, there may be a case where
the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or injurious effect on
the other spouse need not be enquired into or
considered.
In such cases, the cruelty will be established
if the conduct itself is proved or admitted (See
Sobha
Rani v. Madhukar Reddi
(1988) 1 SCC 105).
To constitute cruelty, the conduct complained of
should be "grave and weighty" so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse. It must
be something more serious than "ordinary wear and tear
of married life". The conduct taking into consideration
the circumstances and background has to be examined
to reach the conclusion whether the conduct complained
of amounts to cruelty in the matrimonial law. Conduct
has to be considered, as noted above, in the background
of several factors such as social status of parties, their
education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition
or to give exhaustive description of the circumstances,
which would constitute cruelty. It must be of the type as
to satisfy the conscience of the Court that the
relationship between the parties had deteriorated to such
extent due to the conduct of the other spouse that it
would be impossible for them to live together without
mental agony, torture or distress, to entitle the
complaining spouse to secure divorce. Physical violence
is not absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty
within the meaning of
Section 10
of the Act. Mental
cruelty may consist of verbal abuses and insults by using
filthy and abusive language leading to constant
disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on
the ground of cruelty has to bear in mind that the
problems before it are those of human beings and the
psychological changes in a spouse's conduct have to be
borne in mind before disposing of the petition for divorce.
However, insignificant or trifling, such conduct may
cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain
pitch of severity. It is for the Court to weigh the gravity. It
has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be
considered whether the complainant should be called
upon to endure as a part of normal human life. Every
matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations,
quarrels between spouses, which happen in day-to-day
married life, may also not amount to cruelty. Cruelty in
matrimonial life may be of unfounded variety, which can
be subtle or brutal. It may be words, gestures or by mere
silence, violent or non-violent.

The foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance to
each other's fault to a certain bearable extent has to be
inherent in every marriage. Petty quibbles, trifling
differences should not be exaggerated and magnified to
destroy what is said to have been made in heaven. All
quarrels must be weighed from that point of view in
determining what constitutes cruelty in each particular
case and as noted above, always keeping in view the
physical and mental conditions of the parties, their
character and social status. A too technical and hyper-
sensitive approach would be counter-productive to the
institution of marriage. The Courts do not have to deal
with ideal husbands and ideal wives. It has to deal with
particular man and woman before it. The ideal couple or
a mere ideal one will probably have no occasion to go to
Matrimonial Court.

In
Durga P.Tripathy v. Arundhati Tripathy
,
(2005) 7 SCC 353, this Court further observed that
Marriages are made in heaven. Both parties have crossed
the point of no return. A workable solution is certainly
not possible. Parties cannot at this stage reconcile
themselves and live together forgetting their past as a
bad dream. We, therefore, have no other option except to
allow the appeal and set aside the judgment of the High
Court and affirming the order of the Family Court
granting decree for divorce.

In Lalitha v. Manickswamy, I (2001) DMC 679 SC
that the had cautioned in that case that unusual step of
granting the divorce was being taken only to clear up the
insoluble mess when the Court finds it in the interests of
both the parties.

Irretrievable Breakdown of Marriage
Irretrievable breakdown of marriage is not a ground
for divorce under the
Hindu Marriage Act, 1955
.
Because of the change of circumstances and for covering
a large number of cases where the marriages are virtually
dead and unless this concept is pressed into services, the
divorce cannot be granted. Ultimately, it is for the
Legislature whether to include irretrievable breakdown of
marriage as a ground of divorce or not but in our
considered opinion the Legislature must consider
irretrievable breakdown of marriage as a ground for grant
of divorce under the
Hindu Marriage Act, 1955
.
The 71st Report of the Law Commission of India
briefly dealt with the concept of Irretrievable breakdown
of marriage. This Report was submitted to the
Government on 7th April, 1978. We deem it appropriate
to recapitulate the recommendation extensively. In this
Report, it is mentioned that during last 20 years or so,
and now it would around 50 years, a very important
question has engaged the attention of lawyers, social
scientists and men of affairs, namely, should the grant of
divorce be based on the fault of the party, or should it be
based on the breakdown of the marriage? The former is
known as the matrimonial offence theory or fault theory.
The latter has come to be known as the breakdown
theory.

In the Report, it is mentioned that the germ of the
breakdown theory, so far as Commonwealth countries
are concerned, may be found in the legislative and
judicial developments during a much earlier period. The
(New Zealand) Divorce and Matrimonial Causes
Amendment Act, 1920, included for the first time the
provision that a separation agreement for three years or
more was a ground for making a petition to the court for
divorce and the court was given a discretion (without
guidelines) whether to grant the divorce or not. The
discretion conferred by this statute was exercised in a
case in New Zealand reported in 1921. Salmond J., in a
passage which has now become classic, enunciated the
breakdown principle in these word:

"The Legislature must, I think, be
taken to have intended that
separation for three years is to be
accepted by this court, as prima
facie a good ground for divorce.
When the matrimonial relation has
for that period ceased to exist de
facto, it should, unless there are
special reasons to the contrary,
cease to exist de jure also. In
general, it is not in the interests of
the parties or in the interest of the
public that a man and woman
should remain bound together as
husband and wife in law when for a
lengthy period they have ceased to
be such in fact. In the case of such
a separation the essential purposes
of marriage have been frustrated,
and its further continuance is in
general not merely useless but
mischievous."

In the Report it is mentioned that restricting the
ground of divorce to a particular offence or matrimonial
disability, causes injustice in those cases where the
situation is such that although none of the parties is at
fault, or the fault is of such a nature that the parties to
the marriage do not want to divulge it, yet there has
arisen a situation in which the marriage cannot be
worked. The marriage has all the external appearances
of marriage, but none of the reality. As is often put
pithily, the marriage is merely a shell out of which the
substance is gone. In such circumstances, it is stated,
there is hardly any utility in maintaining the marriage as
a fagade, when the emotional and other bounds which
are of the essence of marriage have disappeared.

It is also mentioned in the Report that in case the
marriage has ceased to exist in substance and in reality,
there is no reason for denying divorce, then the parties
alone can decide whether their mutual relationship
provides the fulfillment which they seek. Divorce should
be seen as a solution and an escape route out of a
difficult situation. Such divorce is unconcerned with the
wrongs of the past, but is concerned with bringing the
parties and the children to terms with the new situation
and developments by working out the most satisfactory
basis upon which they may regulate their relationship in
the changed circumstances.

On May 22, 1969, the General Assembly of the
Church of Scotland accepted the Report of their Moral
and Social Welfare Board, which suggested the
substitution of breakdown in place of matrimonial
offences. It would be of interest to quote what they said
in their basis proposals:

"Matrimonial offences are often the
outcome rather than the cause of
the deteriorating marriage. An
accusatorial principle of divorce
tends to encourage matrimonial
offences, increase bitterness and
widen the rift that is already there.
Separation for a continuous period
of at least two years consequent
upon a decision of at least one of the
parties not to live with the other
should act as the sole evidence of
marriage breakdown."

Once the parties have separated and the separation has
continued for a sufficient length of time and one of them
has presented a petition for divorce, it can well be
presumed that the marriage has broken down. The court,
no doubt, should seriously make an endeavour to
reconcile the parties; yet, if it is found that the
breakdown is irreparable, then divorce should not be
withheld. The consequences of preservation in law of the
unworkable marriage which has long ceased to be
effective are bound to be a source of greater misery for
the parties.

A law of divorce based mainly on fault is inadequate
to deal with a broken marriage. Under the fault theory,
guilt has to be proved; divorce courts are presented
concrete instances of human behaviour as bring the
institution of marriage into disrepute.

We have been principally impressed by the
consideration that once the marriage has broken down
beyond repair, it would be unrealistic for the law not to
take notice of that fact, and it would be harmful to
society and injurious to the interests of the parties.
Where there has been a long period of continuous
separation, it may fairly be surmised 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 do not
serve the sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the parties.

Public interest demands not only that the married
status should, as far as possible, as long as possible, and
whenever possible, be maintained, but where a marriage
has been wrecked beyond the hope of salvage, public
interest lies in the recognition of that fact.

Since there is no acceptable way in which a spouse
can be compelled to resume life with the consort, nothing
is gained by trying to keep the parties tied for ever to a
marriage that in fact has ceased to exist.

Some jurists have also expressed their
apprehension for introduction of irretrievable breakdown
of marriage as a ground for grant of the decree of divorce.
In their opinion, such an amendment in the Act would
put human ingenuity at a premium and throw wide open
the doors to litigation, and will create more problems
then are sought to be solved.

The other majority view, which is shared by most
jurists, according to the Law Commission Report, is that
human life has a short span and situations causing
misery cannot be allowed to continue indefinitely. A halt
has to be called at some stage. Law cannot turn a blind
eye to such situations, nor can it decline to give adequate
response to the necessities arising therefrom.

When we carefully evaluate the judgment of the
High Court and scrutinize its findings in the background
of the facts and circumstances of this case, then it
becomes obvious that the approach adopted by the High
Court in deciding this matter is far from satisfactory.

The High Court ought to have considered the
repercussions, consequences, impact and ramifications
of all the criminal and other proceedings initiated by the
parties against each other in proper perspective. For
illustration, the High Court has mentioned that so far as
the publication of the news item is concerned, the status
of husband in a registered company was only that of an
employee and if any news item is published, in such a
situation, it could not, by any stretch of imagination be
taken to have lowered the prestige of the husband. In
the next para 69 of the judgment that in one of the news
item what has been indicated was that in the company,
Nikhil Rubber (P) Ltd., the appellant was only a Director
along with Mrs. Neelu Kohli whom held 94.5% share of
Rs.100/- each in the company. The news item further
indicated that Naveen Kohli was acting against the spirit
of the Article of the Association of Nikhil Rubber (P) Ltd.,
had caused immense loss of business and goodwill. He
has stealthily removed produce of the company, besides
diverted orders of foreign buyers to his proprietorship
firm M/s Navneet Elastomers. He had opened bank
account with forged signatures of Mrs. Neelu Kohli and
fabricated resolution of the Board of Directors of the
company. Statutory authority-
Companies Act
had
refused to register documents filed by Mr. Naveen Kolhi
and had issued show cause notice. All business
associates were cautioned to avoid dealing with him
alone. Neither the company nor Mrs. Neelu Kohli shall
be liable for the acts of Mr. Naveen Kohli. Despite the
aforementioned finding that the news item was intended
to caution business associates to avoid dealing with the
appellant then to come to this finding in the next para
that it will by no stretch of imagination result in mental
cruelty is wholly untenable.

The findings of the High Court that the respondent
wife's cautioning the entire world not to deal with the
appellant (her husband) would not lead to mental cruelty
is also wholly unsustainable.

The High Court ought to have examined the facts of
the case and its impact. In the instant case, the
following cases were filed by the respondent against the
appellant.

1. The respondent filed FIR No. 100/96 at Police
Station, Kohna under Sections 379/323 IPC

2. The respondent got a case registered under Sections
323/324 registered in the police station Panki,
Kanpur City.

3. At the behest of the respondent FIR No.156 of 1996
was also filed in the police station, Panki.

4. The respondent filed FIR under
Section 420
/
IPC at the Police Station, Kotwali.

5. The respondent got a case registered under Section
under
Sections 420
/
/
and
IPC.

6. The respondent filed a complaint against the
appellant under
Sections 498A
/
/
/
IPC
at Police Station, Kohna.

7. The respondent had even gone to the extent of
opposing the bail application of the appellant in
criminal case filed at the police station, Kotwali

8. When police filed final report in two criminal cases
at police station, Kotwali and police station, Kohna,
the respondent filed protest petition in these cases.

9. The respondent filed complaint no.125 of 1998 in
the Women Cell, Delhi in September 1997 against
the appellant's lawyer and friend alleging criminal
intimidation.

10. The respondent filed a complaint under sections
397/398 before the Company Law Board, New
Delhi.

11. The respondent filed a complaint in Case No.1365
0f 1988 against the appellant.

12. Again on 8.7.1999, the respondent filed a complaint
in the Parliament Street Police Station, New Delhi
and made all efforts to get the appellant arrested.

13. On 31.3.1999, the respondent have sent a notice
for breaking the Nucleus of the HUF.

14. The respondent filed a complaint against the
appellant under
Section 24
of the Hindu Marriage
Act.

15. The respondent had withdrawn Rs.9,50,000/- from
the bank account of the appellant in a clandestine
manner.

16. On 22.1.01 the respondent gave affidavit before the
High Court and got non-bailable warrants issued
against the appellant.

17. The respondent got an advertisement issued in a
national newspaper that the appellant was only her
employee. She got another news item issued
cautioning the business associates to avoid dealing
with the appellant.

The findings of the High Court that these
proceedings could not be taken to be such which may
warrant annulment of marriage is wholly unsustainable.

Even at this stage, the respondent does not want
divorce by mutual consent. From the analysis and
evaluation of the entire evidence, it is clear that the
respondent has resolved to live in agony only to make life
a miserable hell for the appellant as well. This type of
adamant and callous attitude, in the context of the facts
of this case, leaves no manner of doubt in our mind that
the respondent is bent upon treating the appellant with
mental cruelty. It is abundantly clear that the marriage
between the parties had broken down irretrievably and
there is no chance of their coming together, or living
together again.

The High Court ought to have appreciated that
there is no acceptable way in which the parties can be
compelled to resume life with the consort, nothing is
gained by trying to keep the parties tied forever to a
marriage that in fact has ceased to exist.

Undoubtedly, it is the obligation of the Court and all
concerned that the marriage status should, as far as
possible, as long as possible and whenever possible, be
maintained, but when the marriage is totally dead, in
that event, nothing is gained by trying to keep the parties
tied forever to a marriage which in fact has ceased to
exist. In the instant case, there has been total
disappearance of emotional substratum in the marriage.
The course which has been adopted by the High Court
would encourage continuous bickering, perpetual
bitterness and may lead to immorality.

In view of the fact that the parties have been living
separately for more than 10 years and a very large
number of aforementioned criminal and civil proceedings
have been initiated by the respondent against the
appellant and some proceedings have been initiated by
the appellant against the respondent, the matrimonial
bond between the parties is beyond repair. A marriage
between the parties is only in name. The marriage has
been wrecked beyond the hope of salvage, public interest
and interest of all concerned lies in the recognition of the
fact and to declare defunct de jure what is already
defunct de facto. To keep the sham is obviously
conducive to immorality and potentially more prejudicial
to the public interest than a dissolution of the marriage
bond.

The High Court ought to have visualized that
preservation of such a marriage is totally unworkable
which has ceased to be effective and would be greater
source of misery for the parties.

The High Court ought to have considered that a
human problem can be properly resolved by adopting a
human approach. In the instant case, not to grant a
decree of divorce would be disastrous for the parties.
Otherwise, there may be a ray of hope for the parties that
after a passage of time (after obtaining a decree of
divorce) the parties may psychologically and emotionally
settle down and start a new chapter in life.

In our considered view, looking to the peculiar facts
of the case, the High Court was not justified in setting
aside the order of the Trial Court. In our opinion,
wisdom lies in accepting the pragmatic reality of life and
take a decision which would ultimately be conducive in
the interest of both the parties.

Consequently, we set aside the impugned judgment
of the High Court and direct that the marriage between
the parties should be dissolved according to the
provisions of the
Hindu Marriage Act, 1955
. In the
extra-ordinary facts and circumstances of the case, to
resolve the problem in the interest of all concerned, while
dissolving the marriage between the parties, we direct the
appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs)
to the respondent towards permanent maintenance to be
paid within eight weeks. This amount would include
Rs.5,00,000/- (Rupees five lacs with interest) deposited
by the appellant on the direction of the Trial Court. The
respondent would be at liberty to withdraw this amount
with interest. Therefore, now the appellant would pay
only Rs.20,00,000/- (Rupees Twenty lacs) to the
respondent within the stipulated period. In case the
appellant fails to pay the amount as indicated above
within the stipulated period, the direction given by us
would be of no avail and the appeal shall stand
dismissed. In awarding permanent maintenance we
have taken into consideration the financial standing of
the appellant.

Before we part with this case, on the consideration
of the totality of facts, this Court would like to
recommend the Union of India to seriously consider
bringing an amendment in the
Hindu Marriage Act, 1955

to incorporate irretrievable breakdown of marriage as a
ground for the grant of divorce. A copy of this judgment
be sent to the Secretary, Ministry of Law & Justice,
Department of Legal Affairs, Government of India for
taking appropriate steps.

The appeal is accordingly disposed of. In the facts
and circumstances of the case we direct the parties to
bear their own costs.