Naveen Kohli Vs. Neelu
Kohli  Insc 135 (21
B.N. Agrawal,A.K. Mathur & Dalveer Bhandari, J
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.
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.
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.
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.
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.
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.
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.
appellant alleged that the respondent got a false first information report
registered against him under Sections 420/467/468 and 471 IPC which was
registered as Case No.156 of 1995. According to him, the respondent again got a
case under Sections 323/324 I.P.C. registered in the police station Panki, Kanpur City and efforts were made to get 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.
respondent in her statement before the Trial Court had mentioned that she had
filed an FIR against the appellant under Section 420/468 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 379/323 IPC against the appellant.
respondent had also filed a complaint against the appellant and his mother
under Sections 498A/323/504/506 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.
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.
to the appellant, the respondent filed a forged complaint under sections
397/398 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.
appellant also mentioned that the respondent filed a false complaint in Case
No.1365 0f 1988 using all kinds of abuses against the appellant.
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.
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.
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 :
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.
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.
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
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.
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.
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 :-
"Whether the respondent treated
the plaintiff with cruelty by registering various criminal cases, getting the
news published and initiating civil proceedings?
Whether the defendant treated the
plaintiff with cruelty by her objectionable behaviour
as stated in the plaint?
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?
Whether the petition is not
maintainable on the basis of preliminary objections 1 to 3 of the written
Whether plaintiff has kept Smt. Shivanagi with him as his
concubine? If yes, its impact?
Whether suit of the plaintiff is
barred by the provisions of Section 11, C.P.C.?
Whether plaintiff is entitled to get
the decree of dissolution of marriage against defendant?
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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".
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:
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,
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:
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:
the door of cruelty were opened too wide, we should soon find ourselves
granting divorce for incompatibility of temperament.
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
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:
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.
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.
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.
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.
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.
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.
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.
Court went on to observe as under :
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
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.
Denning said in Sheldon v. Sheldon,  2 All E.R. 257 (CA) 'the categories
of cruelty are not closed'. Each case may be different.
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:
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.
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
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
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
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.
this case, this Court further stated as under:
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
of separation, and
the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly
two elements are essential so far as the deserted spouse is concerned:
the absence of consent, and
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.
Court in the case of Gananth Pattnaik
vs. State of Orissa reported in (2002) 2 SCC 619
observed as under:
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:
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.
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.
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.
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
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.
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.
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.
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:
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.
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.
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.
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.
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.
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).
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.
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.
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.
Breakdown of Marriage Irretrievable breakdown of marriage is not a ground for
divorce under the Hindu Marriage Act, 1955.
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.
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.
latter has come to be known as the breakdown theory.
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:
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
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.
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,
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:
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.
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.
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.
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.
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.
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.
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.
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
The respondent filed FIR No. 100/96
at Police Station, Kohna under Sections 379/323 IPC
The respondent got a case registered
under Sections 323/324 registered in the police station Panki,
At the behest of the respondent FIR
No.156 of 1996 was also filed in the police station, Panki.
The respondent filed FIR under
Section 420/468 IPC at the Police Station, Kotwali.
The respondent got a case registered
under Section under Sections 420/467/468 and 471 IPC.
The respondent filed a complaint
against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna.
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
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.
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.
The respondent filed a complaint
under sections 397/398 before the Company Law Board, New Delhi.
The respondent filed a complaint in
Case No.1365 0f 1988 against the appellant.
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
On 31.3.1999, the respondent
have sent a notice for breaking the Nucleus of the HUF.
The respondent filed a complaint
against the appellant under Section 24 of the Hindu Marriage Act.
The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a
On 22.1.01 the respondent gave
affidavit before the High Court and got non-bailable
warrants issued against the appellant.
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.
findings of the High Court that these proceedings could not be taken to be such
which may warrant annulment of marriage is wholly unsustainable.
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.
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.
course which has been adopted by the High Court would encourage continuous
bickering, perpetual bitterness and may lead to immorality.
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.
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.
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
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.
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
appeal is accordingly disposed of. In the facts and circumstances of the case
we direct the parties to bear their own costs.