Supreme Court of India

Dr.(Mrs.) Malathi Ravi, M.D vs Dr. B.V . Ravi M.D on 30 June, 2014

Equivalent citations: AIR 2014 SUPREME COURT 2881, 2014 AIR SCW 4283, 2015 (3) AJR 18, 2014 (3) AIR KANT HCR 792, 2014 (8) SCALE 54, (2014) 140 ALLINDCAS 23 (SC), (2014) 4 KCCR 3273, (2014) 3 ICC 677, (2015) 1 MAD LW 775, (2014) 6 ALLMR 400 (SC), (2014) 2 CLR 426 (SC), (2014) 2 MARRILJ 304, 2014 (7) SCC 640, 2014 (140) ALLINDCAS 23, (2014) 4 PAT LJR 89, (2015) 2 CIVLJ 787, (2015) 4 CGLJ 487, (2015) 1 MAH LJ 107, (2015) 1 JCR 108 (SC), (2015) 1 MPLJ 53, AIR 2014 SC (CIVIL) 2114, 2014 (4) KER LT 18.2 SN, (2014) 3 JLJR 502, (2015) 4 CAL HN 81, (2014) 3 RECCIVR 621, (2014) 2 DMC 483, (2014) 3 CIVILCOURTC 293, (2014) 5 ANDHLD 154, (2014) 8 SCALE 54, (2014) 2 WLC(SC)CVL 343, (2014) 105 ALL LR 664, (2014) 4 ALL WC 3992, (2014) 3 CALLT 70, (2014) 210 DLT 733

Author:
Dipak Misra

Bench:
Dipak Misra
,
Sudhansu Jyoti Mukhopadhaya

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5862 OF 2014
(Arising out of S.L.P. (C) No. 17 of 2010)

Dr. (Mrs.) Malathi Ravi, M.D. ... Appellant

Versus

Dr. B.V. Ravi, M.D. ...Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

Marriage as a social institution is an affirmance of civilized social order
where two individuals, capable of entering into wedlock, have pledged
themselves to the institutional norms and values and promised to each other
a cemented bond to sustain and maintain the marital obligation. It stands
as an embodiment for continuance of the human race. Despite the pledge and
promises, on certain occasions, individual incompatibilities, attitudinal
differences based upon egocentric perception of situations, maladjustment
phenomenon or propensity for non-adjustment or refusal for adjustment gets
eminently projected that compels both the spouses to take intolerable
positions abandoning individual responsibility, proclivity of asserting
superiority complex, betrayal of trust which is the cornerstone of life,
and sometimes a pervert sense of revenge, a dreadful diet, or sheer sense
of envy bring the cracks in the relationship when either both the spouses
or one of the spouses crave for dissolution of marriage – freedom from the
institutional and individual bond. The case at hand initiated by the
husband for dissolution of marriage was viewed from a different perspective
by the learned Family Court Judge who declined to grant divorce as the
factum of desertion as requisite in law was not proved but the High Court,
considering certain facts and taking note of subsequent events for which
the appellant was found responsible, granted divorce. The High Court
perceived the acts of the appellant as a reflection of attitude of revenge
in marriage or for vengeance after the reunion pursuant to the decree for
restitution of marriage. The justifiability of the said analysis within the
parameters of
Section 13(1)
of the Hindu Marriage Act, 1955 (for brevity
“the Act”) is the subject-matter of assail in this appeal, by special
leave, wherein the judgment and decree dated 11.09.2009 passed by the High
Court of Karnataka in MFA No. 9164 of 2004 reversing the decree for
restitution of conjugal rights granted in favour of the wife and passing a
decree for dissolution of marriage by way of divorce allowing the petition
preferred by the respondent-husband, is called in question.

The respondent-husband, an Associate Professor in Ambedkar Medical College,
Kadugondanahalli, Bangalore, filed a petition, M.S. No. 5 of 2001 under

Section 13(1)
the Act seeking for a decree for judicial separation and
dissolution of marriage. However, in course of the proceeding the petition
was amended abandoning the prayer for judicial separation and converting
the petition to one under
Section 13(1)(ib)
of the Act seeking dissolution
of marriage by way of divorce.

In the petition filed before the Family court, it was averred by the
respondent-husband that the marriage between the parties was solemnized in
accordance with Hindu Rites and customs on 23.11.1994. After the marriage
the husband and wife stayed together for one and a half years in the house
of the father of the husband but from the very first day the appellant-wife
was non-cooperative, arrogant and her behaviour towards the family members
of the husband was unacceptable. Despite the misunderstanding, a male
child was born in the wedlock and thereafter, the wife took the child and
left the house and chose not to come back to the husband or his family for
a period of three years. It was pleaded that there had been a marital
discord and total non-compatibility, and she had deserted him severing all
ties. It was also alleged that she had left the tender child in the
custody of her parents and joined a post graduate course in the Medical
College of Gulbarga. All the efforts by the husband to bring her back
became an exercise in futility inasmuch as the letters written by him were
never replied. Despite the non-responsive attitude of the wife, he,
without abandoning the hope for reconciliation for leading a normal married
life, went to the house of his in-laws, but her parents ill treated him by
forcibly throwing him out of the house.

It was the assertion of the husband that after she completed her course,
she started staying with her parents along with the child at Bangalore and
neither he nor his family members were invited for the naming giving
ceremony of the child. As set forth, the conduct of the wife caused
immense mental hurt and trauma, and he suffered unbearable mental agony
when the family members of his wife abused and ill treated him while he had
gone to pacify her and bring her back to the matrimonial home. All his
solicitations and beseechments through letters to have normalcy went in
vain which compelled him to issue a notice through his counsel but she
chose not to respond to the same. Under these circumstances, the petition
was filed for judicial separation and thereafter, as has been stated
earlier, prayer was amended seeking dissolution of marriage on the ground
of desertion since she had deliberately withdrawn from his society.

The wife filed objections contending, inter alia, that when she was
residing in the matrimonial home, the sister and brother-in-law of the
husband, who stayed in the opposite house, were frequent visitors and their
interference affected the normal stream of life of the couple. They
influenced the husband that he should not allow his wife to prosecute her
studies and be kept at home as an unpaid servant of the house. The
husband, as pleaded, was torn in conflict as he could not treat the wife in
the manner by his sister and brother-in-law had desired and also could not
openly express disagreement. At that juncture, as she was in the family
way, as per the customs, she came to her parental home and by the time the
child was born the sister and brother-in-law had been successful in
poisoning the mind of the husband as a result of which neither he nor his
relatives, though properly invited, did not turn up for the naming
ceremony. All her attempts to come back to the matrimonial home did not
produce any result since the husband was acting under the ill-advice of his
sister and brother-in-law. It was put forth that he had without any
reasonable cause or excuse refused to perform his marital obligations. The
plea of mental hurt and trauma was controverted on the assertion that she
had never treated him with cruelty nor was he summarily thrown out of the
house of her parents.

Be it stated, the wife in the same petition filed an application under

Section 9
of the Act for restitution of conjugal rights to which an
objection was filed by the husband stating, inter alia, that no case had
been made out for restitution of conjugal rights but, on the contrary,
vexatious allegations had been made. It was further averred that the wife
had deserted him for more than five years and she had been harassing him
constantly and consistently.

In support of their respective pleas the husband and wife filed evidence by
way of affidavit and were cross-examined at length by the other side. On
behalf of the husband 12 documents were exhibited as Exts. P-1 to P-12 and
the wife examined one witness and exhibited four documents, Exts. R-1 to R-

4.

The family court formulated the following points for consideration: -

“(1) Whether the petitioner proves that respondent assaulted him for a
continuous period of not less than 2 years immediately proceeding the
presentation of the petition?

Whether the respondent proves that the petitioner without reasonable excuse
withdrawn from the society?

Whether the petitioner is entitled for decree of divorce as prayed for?

Whether the respondent is entitled for decree of restitution of conjugal
right as prayed for?

What order?”

The learned Principal Judge of the family court, appreciating the oral and
documentary evidence on record came to hold that the material on record
gave an impression that there was no scuffle between the husband and the
wife; that even after the birth of the child the husband and his family
members used to visit the wife at her parental home to see the child; that
there was no material on record to show that when he went to his in-laws
house to see the child, he was ill-treated in any manner; that after the
child was born he had taken the child along with her for vaccination and
spent sometime; that though the husband and his relatives were invited for
naming ceremony of the child, they chose not to attend; that the husband
was able to recognize his son from the photograph in Ext. R-2; that the
plea of the husband that he was not allowed to see the child did not
deserve acceptation; that the circumstances did not establish that wife had
any intention to bring the conjugal relationship to an end but, on the
contrary, she was residing in her parents’ house for delivery and then had
to remain at Gulbarga for prosecuting her higher studies; that while she
was studying at Gulbarga, as is evident from Ext. R-4, the husband stayed
there for two days, i.e., 27.5.1999 and 28.5.1999; that from the letters
vide Exts. P-3, P-7, P-9 and P-11 nothing was discernible to the effect
that the wife went to Gulbarga for her studies without his permission and
she had deserted him; that the husband had not disclosed from what date he
stopped visiting the house of the wife’s parents after the birth of the
child; that the letters written by the husband did not reflect the non-
cooperative conduct of the wife; that there was no sufficient evidence to
come to a definite conclusion that the wife had deserted the husband with
an intention to bring the matrimonial relationship to an end; that assuming
there was desertion yet the same was not for a continuous period of two
years immediately preceding the presentation of the petition; that the
husband only wrote letters after 15.9.1999 and nothing had been brought on
record to show what steps he had taken for resumption of marital ties with
the wife if she had deserted him; that the wife was not allowed to come
back to the matrimonial home because of intervention of his sister and
brother-in-law; that the explanation given by the wife to her non-response
to the letters was that when she was thinking to reply the petition had
already been filed was acceptable; that as the husband was working at
Ambedkar Medical College in the Department of Biochemistry and wife had
joined in the Department of Pathology which would show that she was willing
to join the husband to lead a normal marital life; and that it was the
husband who had withdrawn from the society of the wife without any
reasonable cause. Being of this view, the learned Family Judge dismissed
the application for divorce and allowed the application of the wife filed
under
Section 23(a)
read with
Section 9
of the Act for restitution of
conjugal rights.

After the said judgment and decree was passed by the learned Family Judge,
the respondent did not prefer an appeal immediately. He waited for the
wife to join and for the said purpose he wrote letters to her and as there
was no response, he sent a notice through his counsel. The wife,
eventually, joined on 22.8.2004 at the matrimonial house being accompanied
by her relative who was working in the Police Department. As the turn of
events would uncurtain, the wife lodged an FIR No. 401/2004 dated
17.10.2004 at Basaveshwaranagar alleging demand of dowry against the
husband, mother and sister as a consequence of which the husband was
arrested being an accused for the offences under Section 498A and 506 read
with
Section 34
of the Indian Penal Code and also under the provisions of

Dowry Prohibition Act
. He remained in custody for a day until he was
enlarged on bail. His parents were compelled to hide themselves and moved
an application under
Section 438
of the Code of Criminal Procedure and,
ultimately, availed the benefit of said provision. After all these events
took place, the husband preferred an appeal along with application for
condonation of delay before the High Court which formed the subject-matter
of M.F.A. No. 9164/04 (FC). The High Court condoned the delay, took note
of the grounds urged in the memorandum of appeal, appreciated the
subsequent events that reflected the conduct of the wife and opined that
the attitude of the wife confirmed that she never had the intention of
leading a normal married life with the husband and, in fact, she wanted to
stay separately with the husband and dictate terms which had hurt his
feelings. The High Court further came to the conclusion that the husband
had made efforts to go to Gulbarga on many an occasion, tried to convince
the wife to come back to the matrimonial home, but all his diligent efforts
met with miserable failure. As the impugned judgment would reflect, the
behaviour of the wife established that she deliberately stayed away from
the marital home and intentionally caused mental agony by putting the
husband and his family to go through a criminal litigation. That apart,
the High Court took the long separation into account and, accordingly, set
aside the judgment and decree for restitution of conjugal rights and passed
a decree for dissolution of marriage between the parties.

We have heard Mr. Shanth Kumar V. Mohale, learned counsel for the appellant
and Mr. Balaji Srinivasan, learned counsel for the respondent.

Assailing the legal sustainability of the judgment of the High Court, Mr.
Shanth Kumar, learned counsel appearing for the appellant, submitted that
when the petition for divorce was founded solely on the ground of desertion
and a finding was returned by the family court that the ingredients
stipulated under
Section 13(1)(ib)
of the Act were not satisfied making out
a case of desertion on the part of the wife, the High Court should have
concurred with the same and not proceeded to make out a case for the
respondent-husband on the foundation of mental cruelty. It is urged by him
that the High Court has taken note of subsequent events into consideration
without affording an opportunity to the appellant to controvert the said
material and that alone makes the decision vulnerable in law. Learned
counsel would submit that the High Court has erroneously determined the
period of communication of letters and the silence maintained by the wife
which is factually incorrect and, in fact, the concept of desertion, as is
understood in law, has not been proven by way of adequate evidence but, on
the contrary, the analysis of evidence on record by the Family Court goes a
long way to show that there was, in fact, no desertion on the part of the
wife to make out a case for divorce. It is his further submission that the
High Court has opined that the marriage between the parties had
irretrievably been broken and, therefore, it was requisite to grant a
decree for dissolution of marriage by divorce which cannot be a ground for
grant of divorce. Learned counsel has placed reliance on the decisions in

Lachman Utamchand Kirpalani v. Meena @ Mota
[1],
K. Narayanan v. K.
Sreedevi
[2],
Mohinder Singh v. Harbens Kaur
[3] and
Smt. Indira Gangele v.
Shailendra Kumar Gangele
[4].

Mr. Balaji Srinivasan, learned counsel for the respondent-husband, has
urged that if the petition filed by the husband is read in entirety, it
would be clear that the husband had clearly pleaded about the mental hurt
and trauma that he had suffered because of the treatment meted out to him
by his wife and her family members. He has drawn our attention to the
evidence to show that for a long seven and a half years despite the best
efforts he could not get marital cooperation from his wife and as the High
Court has accepted the same, the impugned judgment is flawless. He has
highlighted about the non-responsive proclivity of the wife when she chose
not to reply to the letters of the husband beseeching her to join his
company while she was staying at Gulbarga. He has also drawn our attention
to the cross-examination of the husband where he has deposed that after the
delivery of the son on 12.1.1998 when she was discharged, he and his mother
had gone to bring the wife and the child to their home but she went to her
parental home and further neither he nor his family members were invited
for the naming ceremony which was performed in October, 1998. Learned
counsel has drawn our attention to the subsequent events which have been
brought on record by way of affidavit as well as the rejoinder filed by the
appellant-wife to the counter affidavit to highlight the subsequent conduct
for the purpose of demonstrating the cruel treatment of the wife. It is
canvassed by him that the subsequent events can be taken note of for the
purpose of mental cruelty by this Court and the decree of divorce granted
by the High Court should not be disturbed.

To appreciate the rivalised submissions raised at the Bar, we have
carefully perused the petition and the evidence adduced by the parties and
the judgment of the Family Court and that of the High Court. The plea that
was raised for grant of divorce was under
Section 13(1)(ib)
of the Act. It
provides for grant of divorce on the ground of desertion for a continuous
period of not less than two year immediately preceding the presentation of
the petition. The aforesaid provision stipulates that a husband or wife
would be entitled to a dissolution of marriage by decree of divorce if the
other party has deserted the party seeking the divorce for a continuous
period of not less than two years immediately preceding the presentation of
the petition. Desertion, as a ground for divorce, was inserted to
Section
by Act 68/1976. Prior to the amendment it was only a ground for
judicial separation. Dealing with the concept of desertion, this Court in

Savitri Pandey v. Prem Chandra Pandey
[5] has ruled thus:-

“Desertion”, for the purpose of seeking divorce under the Act, means the
intentional permanent forsaking and abandonment of one spouse by the other
without that other’s consent and without reasonable cause. In other words
it is a total repudiation of the obligations of marriage. Desertion is not
the withdrawal from a place but from a state of things. Desertion,
therefore, means withdrawing from the matrimonial obligations i.e. not
permitting or allowing and facilitating the cohabitation between the
parties. The proof of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises the sexual
relationship between man and woman in the society for the perpetuation of
race, permitting lawful indulgence in passion to prevent licentiousness and
for procreation of children. Desertion is not a single act complete in
itself, it is a continuous course of conduct to be determined under the
facts and circumstances of each case. After referring to a host of
authorities and the views of various authors, this Court in Bipinchandra
Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in
a state of temporary passion, for example, anger [pic]or disgust without
intending permanently to cease cohabitation, it will not amount to
desertion.

In the said case, reference was also made to Lachman Utamchand Kirpalani’s
case wherein it has been held that desertion in its essence 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 the case at hand, the Family Court, on the basis of the evidence brought
on record, has recorded a finding that there was no desertion for a
continuous period of two years. The High Court has reversed it by
emphasizing on certain aspects of conduct. Analysing the evidence, we are
of the considered opinion that it is not established that the appellant-
wife had deserted the husband for a continuous period of not less than two
years immediately preceding the presentation of the petition. It is
because the petition was presented in the year 2001 and during the cross-
examination of the husband it has been admitted by him that he had gone to
Gulbarga in May, 1999 for two days. The Family Court, on the basis of
material brought on record, has opined that there is no sufficient evidence
to come to a definite conclusion that the wife deserted him with intention
to bring the matrimonial relationship to an end and further the period of
two years was not completed. The High Court, as it seems to us, has not
dealt with this aspect in an appropriate manner and opined that the wife
had no intention to lead a normal married life with the husband.
Therefore, the allegation of desertion, as enshrined under
Section
13(1)(ib)
has not been established. The finding on that score as recorded
by the learned Principal Judge, Family Court, deserves to be affirmed and
we so do.

Presently to the factual matrix in entirety and the subsequent events. We
are absolutely conscious that the relief of dissolution of marriage was
sought on the ground of desertion. The submission of the learned counsel
for the appellant is that neither subsequent events nor the plea of cruelty
could have been considered. There is no cavil over the fact that the
petition was filed under
Section 13(1)(ib)
. However, on a perusal of the
petition it transpires that there are assertions of ill-treatment, mental
agony and torture suffered by the husband.

First we intend to state the subsequent events. As has been narrated
earlier, after the application of the wife was allowed granting restitution
of conjugal rights, the husband communicated to her to join him, but she
chose not to join him immediately and thereafter went to the matrimonial
home along with a relative who is a police officer. After she stayed for a
brief period at the matrimonial home, she left her husband and thereafter
lodged FIR No. 401/2004 on 17.10.2004 for the offences under
Sections 498A

and
/
of the Indian Penal Code and the provisions under
Dowry
Prohibition Act, 1961
against the husband, his mother and the sister.
Because of the FIR the husband was arrested and remained in custody for a
day. The ladies availed the benefit of anticipatory bail. The learned
trial Magistrate, as we find, recorded a judgment of acquittal. Against
the judgment of acquittal, the appellant preferred an appeal before the
High Court after obtaining special leave which was ultimately dismissed as
withdrawn since in the meantime the State had preferred an appeal before
the Court of Session. At this juncture, we make it absolutely clear that
we will not advert to the legal tenability of the judgment of acquittal as
the appeal, as we have been apprised, is sub-judice. However, we take note
of certain aspects which have been taken note of by the High Court and also
brought on record for a different purpose.

The seminal question that has to be addressed is whether under these
circumstances the decree for divorce granted by the High Court should be
interfered with. We must immediately state that the High Court has referred
to certain grounds stated in the memorandum of appeal and taken note of
certain subsequent facts. We accept the submission of the learned counsel
for the appellant that the grounds stated in the memorandum of appeal which
were not established by way of evidence could not have been pressed into
service or taken aid of. But, it needs no special emphasis to state that
the subsequent conduct of the wife can be taken into consideration. It
settled in law that subsequent facts under certain circumstances can be
taken into consideration.

In
A. Jayachandra v. Aneel Kaur
[6] it has been held thus: -

“If acts subsequent to the filing of the divorce petition can be looked
into to infer condonation of the aberrations, acts subsequent to the filing
of the petition can be taken note of to show a pattern in the behaviour and
conduct.”

In
Suman Kapur v. Sudhir Kapur
[7] this Court had accepted what the High
Court had taken note of despite the fact that it was a subsequent event.
It is necessary to reproduce the necessary paragraphs from
the said
decision
to perceive the approach of this Court: -

“46. The High Court further noted that the appellant wife sent a notice
through her advocate to the respondent husband during the pendency of
mediation proceedings in the High Court wherein she alleged that the
respondent was having another wife in USA whose identity was concealed.
This was based on the fact that in his income tax return, the husband
mentioned the social security number of his wife as 476-15-6010, a number
which did not belong to the appellant wife, but to some American lady
(Sarah Awegtalewis).

[pic]47. The High Court, however, recorded a finding of fact accepting the
explanation of the husband that there was merely a typographical error in
giving social security number allotted to the appellant which was 476-15-
6030. According to the High Court, taking undue advantage of the error in
social security number, the appellant wife had gone to the extent of making
serious allegation that the respondent had married an American woman whose
social security number was wrongly typed in the income tax return of the
respondent husband.”

From the acceptance of the reasons of the High Court by this Court, it is
quite clear that subsequent events which are established on the basis of
non-disputed material brought on record can be taken into consideration.
Having held that, the question would be whether a decree for divorce on the
ground of mental cruelty can be granted. We have already opined that the
ground of desertion has not been proved. Having not accepted the ground of
desertion, the two issues that remain for consideration whether the issue
of mental cruelty deserves to be accepted in the obtaining factual matrix
in the absence of a prayer in the relief clause, and further whether the
situation has become such that it can be held that under the existing
factual scenario it would not be proper to keep the marriage ties alive.
Learned counsel for the appellant has urged with vehemence that when
dissolution of marriage was sought on the ground of desertion alone, the
issue of mental cruelty can neither be raised nor can be addressed to.
Regard being had to the said submission, we are constrained to pose the
question whether in a case of the present nature we should require the
respondent-husband to amend the petition and direct the learned Family
Judge to consider the issue of mental cruelty or we should ignore the
fetter of technicality and consider the pleadings and evidence brought on
record as well as the subsequent facts which are incontrovertible so that
the lis is put to rest. In our considered opinion the issue of mental
cruelty should be addressed to by this Court for the sake of doing complete
justice. We think, it is the bounden duty of this Court to do so and not
to leave the parties to fight the battle afresh after expiry of thirteen
years of litigation. Dealing with the plea of mental cruelty which is
perceptible from the material on record would not affect any substantive
right of the appellant. It would be only condoning a minor technical
aspect. Administration of justice provokes our judicial conscience that it
is a fit case where the plentitude of power conferred on this Court under

Article 142
deserves to be invoked, more so, when the ground is statutorily
permissible. By such exercise we are certain that it would neither be
supplanting the substantive law nor would it be building a structure which
does not exist. It would be logical to do so and illogical to refrain from
doing so.

Before we proceed to deal with the issue of mental cruelty, it is
appropriate to state how the said concept has been viewed by this Court.

In
Vinit Saxena v. Pankaj Pandit
[8], while dealing with the issue of mental
cruelty, the Court held as follows: -

“31. It is settled by a catena of decisions that mental cruelty can cause
even more serious injury than the physical harm and create in the mind of
the injured appellant such apprehension as is contemplated in the section.
It is to be determined on whole facts of the case and the matrimonial
relations between the spouses. To amount to cruelty, there must be such
wilful treatment of the party which caused suffering in body or mind either
as an actual fact or by way of apprehension in such a manner as to render
the continued living together of spouses harmful or injurious having regard
to the circumstances of the case.

Xxx xxx xxx

35. Each case depends on its own facts and must be judged on these facts.

The concept of cruelty has varied from time to time, from place to place
and from individual to individual in its application according to social
status of the persons involved and their economic conditions and other
matters. The question whether the act complained of was a cruel act is to
be determined from the whole facts and the matrimonial relations between
the parties.
In this connection, the culture, temperament and status in
life and many other things are the factors which have to be considered.”

In
Samar Ghosh v. Jaya Ghosh
[9], this Court has given certain illustrative
examples wherefrom inference of mental cruelty can be drawn. The Court
itself has observed that they are illustrative and not exhaustive. We
think it appropriate to reproduce some of the illustrations: -

“(i) On consideration of complete matrimonial life of the parties, acute
mental pain, agony and suffering as would not make possible for the parties
to live with each other could come within the broad parameters of mental
cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the
parties, it becomes abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put up with such conduct and
continue to live with other party.

xxx xxx xxx

(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other
for a long time may lead to mental cruelty.

xxx xxx xxx

(vii) Sustained reprehensible conduct, studied neglect, indifference or
total departure from the normal standard of conjugal kindness causing
injury to mental health or deriving sadistic pleasure can also amount to
mental cruelty.

xxx xxx xxx

(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill
conduct must be persistent for a fairly lengthy period, where [pic]the
relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it extremely difficult to
live with the other party any longer, may amount to mental cruelty.

xxx xxx xxx

(xiv) Where there has been a long period of continuous separation, it may
fairly be concluded that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By refusing to
sever that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and
emotions of the parties. In such like situations, it may lead to mental
cruelty.”

In the said case the Court has also observed thus: -

“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 definition is almost
impossible. What is cruelty in one case may not amount to cruelty in the
other case. The concept of cruelty differs from person to person depending
upon his upbringing, level of sensitivity, educational, family and cultural
background, financial position, social status, customs, traditions,
religious beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot remain static;

it is bound to change with the passage of time, impact of modern culture
through print and electronic media and value system, etc. etc. What may be
mental cruelty now may not remain a mental cruelty after a passage of time
or vice versa. There can never be any straitjacket formula or fixed
parameters for determining mental cruelty in matrimonial matters. The
prudent and appropriate way to adjudicate the case would be to evaluate it
on its peculiar facts and circumstances….”

In Vishwanath Agrawal, s/o Sitaram Agrawal v. Sarla Vishwanath Agrawal[10],
while dealing with mental cruelty, it has been opined thus: -

“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.”

In the said case, analyzing the subsequent events and the conduct of the
wife, who was responsible for publication in a newspaper certain
humiliating aspects about the husband, the Court held as follows: -

“In our considered opinion, a normal reasonable man is bound to feel the
sting and the pungency. The conduct and circumstances make it graphically
clear that the respondent wife had really humiliated him and caused mental
cruelty. Her conduct clearly exposits that it has resulted in causing agony
and anguish in the mind of the husband. She had publicised in the
newspapers that he was a womaniser and a drunkard. She had made wild
allegations about his character. She had made an effort to prosecute him in
criminal litigations which she had failed to prove. The feeling of deep
anguish, disappointment, agony and frustration of the husband is obvious.”

In
U. Sree v. U. Srinivas
[11], the Court, taking note of the deposition of
the husband that the wife had consistently ill treated him inasmuch as she
had shown her immense dislike towards his “sadhna” in music and had
exhibited total indifference to him, observed as follows: -
“It has graphically been demonstrated that she had not shown the slightest
concern for the public image of her husband on many an occasion by putting
him in a situation of embarrassment leading to humiliation. She has made
wild allegations about the conspiracy in the family of her husband to get
him remarried for the greed of dowry and there is no iota of evidence on
record to substantiate the same.

This, in fact, is an aspersion not only on
the character of the husband but also a maladroit effort to malign the
reputation of the family.”

In
K. Srinivas Rao v. D.A. Deepa
[12], while dealing with the instances of
mental cruelty, the court opined that to the illustrations given in the
case of Samar Ghosh certain other illustrations could be added. We think
it seemly to reproduce the observations: -

“Making unfounded indecent defamatory allegations against the spouse or his
or her relatives in the pleadings, filing of complaints or issuing notices
or news items which may have adverse impact on the business prospect or the
job of the spouse and filing repeated false complaints and cases in the
court against the spouse would, in the facts of a case, amount to causing
mental cruelty to the other spouse.”

Presently, we shall advert to the material on record. It is luminous from
it that the wife has made allegations that the sister and brother-in-law of
the husband used to interfere in the day-to-day affairs of the husband and
he was caught in conflict. The said aspect has really not been proven. It
has been brought on record that the sister and brother-in-law are highly
educated and nothing has been suggested to the husband in the cross-
examination that he was pressurized by his sister in any manner whatsoever.
It is her allegation that the sister and brother-in-law of the husband
were pressurizing him not to allow the wife to prosecute higher studies and
to keep her as an unpaid servant in the house. On a studied evaluation of
the evidence and the material brought on record it is demonstrable that the
wife herself has admitted that the husband had given his consent for her
higher education and, in fact, assisted her. Thus, the aforesaid
allegation has not been proven. The allegation that the husband was
instigated to keep her at home as an unpaid servant is quite a disturbing
allegation when viewed from the spectrum of gender sensitivity and any
sensitive person would be hurt when his behavior has remotely not reflected
that attitude. The second aspect which has surfaced from the evidence is
that the wife had gone to the parental home for delivery and therefrom she
went to the hospital where she gave birth to a male child. However, as the
evidence would show, the husband despite all his co-operation as a father,
when had gone to the hospital to bring the wife and child to his house, she
along with the child had gone to her parental house. This aspect of the
evidence has gone totally unchallenged. Perceived from a social point of
view, it reflects the egocentric attitude of the wife and her non-concern
how such an act is likely to hurt the father of the child. The next thing
that has come in evidence is that the respondent was not invited at the
time of naming ceremony. He has categorically disputed the suggestion that
he and his family members were invited to the ceremony. It is interesting
to note that a suggestion has been given that they did not attend the
ceremony as in the invitation card the names of the parents of the husband
had not been printed. It has been asserted by the husband that the said
incident had caused him tremendous mental pain. View from a different
angle, it tantamounts to totally ignoring the family of the husband.

Another incident deserves to be noted. The wife went to Gulbarga to join
her studies and the husband was not aware of it and only come to know when
one professor told about it. Thereafter he went to Gulbarga and stayed in
a hotel and met the wife in the hostel on both the days. Despite his
request to come to the house she showed disinclination. When he enquired
about the child, he was told that the child was in her mother’s house.
These are the incidents which are antecedent to the filing of the petition.

We have already stated the legal position that subsequent events can be
taken note of. After the judgment and decree was passed by the learned
Family Judge, the husband sent a notice through his counsel dated 14.7.2004
and intimated her as follows: -

“According to the operative portion of the order, my client has to welcome
you to join him with the child within three months which please note.

My client’s address is Dr. B.V. Ravi, M.D., residing in No. 428. 2nd
Across, 6th Main, 3rd Stage, 3rd Block, Basaveshwaranagar, Bangalore-79 and
his Telephone No. 23229865. In obedience to the Hon’ble Court order, you
called upon to join Dr. B.V. Ravi to the above said address any day after
18th of July, 2004, as this period upto 17th is inauspicious because of
“Ashada”.”

As it appears, she did not join and the husband was compelled to send a
telegram. Thereafter, on 13.8.2004 a reply was sent on her behalf that she
would be joining after 15.8.2004 but the exact date was not intimated.
Thereafter, on 14.8.2004 a reply was sent to the legal notice dated

14.7.2004 sent by the husband. It is appropriate to reproduce the relevant
two paragraphs: -

“In this context, we hereby inform you that our client will be coming to
join your client in the above said address along with the child on Sunday
the 22nd August 2004 as the auspicious NIJASHRAVANA MONTH commences from
16th August 2004.

Further our client expects reasonable amount of care and cordiality
from your client’s side. Please ensure the same.”

The purpose of referring to these communications is that despite obtaining
decree for restitution of conjugal rights the wife waited till the last day
of the expiration of the period as per the decree to join the husband.
There may be no legal fallacy, but the attitude gets reflected. The reply
also states that there is expectation of reasonable amount of care and
cordiality. This reflects both, a sense of doubt and a hidden threat. As
the facts unfurl, the wife stays for two months and then leaves the
matrimonial home and lodges the first information report against the
husband and his mother and sister for the offences punishable under

Sections 498A
,
/
of the Indian Penal Code and under the provisions of

Dowry Prohibition Act
. The husband suffers a day’s custody and the mother
and the sister availed anticipatory bail.

The High Court has taken note of all these aspects and held that the wife
has no intention to lead a normal marital life. That apart, the High Court
has returned a finding that the marriage has irretrievably been broken
down. Of course, such an observation has been made on the ground of
conduct. This Court in certain cases, namely,
G.V.N. Kameswara Rao v. G.
Jabilli
[13],
Parveen Mehta v. Inderjit Mehta
[14],
Vijayakumar R. Bhate v.
Neela Vijayakumar Bhate
[15],
Durga Prasanna Tripathy v. Arundhati
Tripathy
[16],
Naveen Kohli v. Neelu Kohli
[17] and
Samar Ghosh v. Jaya Ghosh

(supra), has invoked the principle of irretrievably breaking down of
marriage.

For the present, we shall restrict our delineation to the issue whether the
aforesaid acts would constitute mental cruelty. We have already referred
to few authorities to indicate what the concept of mental cruelty means.
Mental cruelty and its effect cannot be stated with arithmetical
exactitude. It varies from individual to individual, from society to
society and also depends on the status of the persons. What would be a
mental cruelty in the life of two individuals belonging to particular
strata of the society may not amount to mental cruelty in respect of
another couple belonging to a different stratum of society. The agonized
feeling or for that matter a sense of disappointment can take place by
certain acts causing a grievous dent at the mental level. The inference
has to be drawn from the attending circumstances. As we have enumerated
the incidents, we are disposed to think that the husband has reasons to
feel that he has been humiliated, for allegations have been made against
him which are not correct; his relatives have been dragged into the
matrimonial controversy, the assertions in the written statement depict him
as if he had tacitly conceded to have harboured notions of gender
insensitivity or some kind of male chauvinism, his parents and he are
ignored in the naming ceremony of the son, and he comes to learn from
others that the wife had gone to Gulbarga to prosecute her studies. That
apart, the communications, after the decree for restitution of conjugal
rights, indicate the attitude of the wife as if she is playing a game of
Chess. The launching of criminal prosecution can be perceived from the
spectrum of conduct. The learned Magistrate has recorded the judgment of
acquittal. The wife had preferred an appeal before the High Court after
obtaining leave. After the State Government prefers an appeal in the Court
of Session, she chooses to withdraw the appeal. But she intends, as the
pleadings would show, that the case should reach the logical conclusion.
This conduct manifestly shows the widening of the rift between the parties.
It has only increased the bitterness. In such a situation, the husband is
likely to lament in every breath and the vibrancy of life melts to give way
to sad story of life.

From this kind of attitude and treatment it can be inferred that the
husband has been treated with mental cruelty and definitely he has faced
ignominy being an Associate Professor in a Government Medical College.
When one enjoys social status working in a Government hospital, this
humiliation affects the reputation. That apart, it can be well imagined
the slight he might be facing. In fact, the chain of events might have
compelled him to go through the whole gamut of emotions. It certainly must
have hurt his self-respect and human sensibility. The sanguine concept of
marriage presumably has become illusory and it would not be inapposite to
say that the wife has shown anaemic emotional disposition to the husband.
Therefore, the decree of divorce granted by the High Court deserves to be
affirmed singularly on the ground of mental cruelty.

Presently, we shall proceed to deal with grant of maintenance. Both the
appellant and the respondent are doctors and have their respective jobs.
The son is hardly sixteen years old and definitely would require financial
support for education and other supportive things to lead a life befitting
his social status. The High Court, while granting a decree for divorce
should have adverted to it. However, we do not think it appropriate to
keep anything alive in this regard between the parties. The controversy is
to be put to rest on this score also. Considering the totality of
circumstances, the status the appellant enjoys and the strata to which the
parties belong, it becomes the bounden duty of the respondent to provide
for maintenance and education for the son who is sixteen years old. At
this juncture, we may note that a proceeding was initiated before the
learned Principal Judge, Family Court, Bangalore and in the said proceeding
the learned Principal Judge passed the following order: -

“Matter is settled before the mediation centre where in parties have
entered into a memorandum of settlement.

Contents of the Memorandum of Settlement are admitted by the Parties.
Court is satisfied that the same is voluntary.

As per the terms of settlement para 5 clause (i) petitioner has
deposited Rs.3,00,000/- in the name of minor child in Karnataka Bank, copy
of fixed deposit receipt and R.D. Account pass book are filed along with
memo. Hence petition is allowed in terms of settlement.

Memorandum of settlement shall be a part of the decree.”

Learned counsel for the respondent would submit that the amount has been
settled. Though there has been a settlement of Rs.3,00,000/- yet that was
at a different time and under different circumstances. The present appeal
was pending. The duty of this Court is to see that the young son born in
the wedlock must get acceptable comfort as well as proper education. It is
the duty of the Court also to see that a minor son should not live in
discomfort or should be deprived of requisite modern education. We are
conscious, the appellant is earning but that does not necessarily mean that
the father should be absolved of his liability. Regard being had to the
social status and strata and the concept of effective availing of education
we fix a sum of Rs.25,00,000/- (twenty five lacs) excluding the amount
already paid towards the maintenance and education of the son. The said
amount shall be deposited by the respondent within a period of six months
before the learned Principal Judge, Family Court at Bangalore and the
amount shall be kept in a fixed deposit in a nationalized bank in the joint
account of the appellant and the minor son so that she can draw quarterly
interest and expend on her son. After the son attains majority the joint
account shall continue and they would be at liberty to draw the amount for
the education or any urgent need of the son.

With the aforesaid directions, we affirm the decree for divorce passed by
the High Court. The appeal stands disposed of accordingly but without any
order as to costs.

.....................................................J.
[Sudhansu Jyoti Mukhopadhaya]

.....................................................J.
[Dipak Misra]

New Delhi;

June 30, 2014.

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[1] AIR 1964 SC 40
[2] AIR 1990 Ker 151
[3] AIR 1992 P&H 8
[4] AIR 1993 MP 59
[5] (2002) 2 SCC 73
[6] (2005) 2 SCC 22
[7] (2009) 1 SCC 422
[8] (2006) 3 SCC 778
[9] (2007) 4 SCC 511
[10] (2012) 7 SCC 288
[11] (2013) 2 SCC 114
[12] (2013) 5 SCC 226
[13] (2002) 2 SCC 296
[14] (2002) 5 SCC 706
[15] (2003) 6 SCC 334
[16] (2005) 7 SCC 353
[17] (2006) 4 SCC 558

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